19th Parliament · 1st Session
The President (Senator the Hon. Gordon Brown) took the chair at 11 a.m., and read prayers.
page 4313
– Can the Minister representing the Minister for the Army say whether members of the British Commonwealth Occupation Force and their families will return to this country in privately owned ships at irregular intervals, the Government paying all fares and freight charges? Have all the former troopships, such as Westralia, Kanimbla, and Duntroon,been returned to their former owners? Has consideration been given to chartering a suitable ship for this task? Has consideration been given to the use. of naval L.S.T. such as Labuan, to move the heavy vehicles and equipment back to Australia?
– I am unable to supply the information that the honorable senator seeks. I have heard in casual conversation of the difficulties that are involved in the transfer. I ask the honor able senator to put his question on the notice-paper so that I may have an opportunity to obtain accurate information for him.
page 4314
– As most honorable senators are aware, I am keenly interested in. investigating the accuracy of news paper reports. I have read in to-day’s Sydney Morning Herald a report of a statement purported to have been made by the Prime Minister at the Town Hall, Sydney. The report attributes to the right honorable gentleman the following remark about the Communist Party Dissolution Bill: -
We are told that the bill strikes at the very roots of decency and justice.
– Order! The honorable senator may not quote from a newspaper report when asking a question.
– I am not quoting from the newspaper. I am quoting from my own notes. The Prime Minister continued -
If I had thought it wasso, I would have had enough guts to get up and vote against it.
I should like to know whether that speech, if the report of it be correct, was delivered at the Town Hall or the abattoirs.
– The question is frivolous.
– Will the Minister inform me whether the Mr. Menzies who addressed a meeting in the Sydney Town Hall last night is identical with a person of thesame name who has received a number of rowdy receptions at the Sydney Stadium and other places in New South
Wales from time to time? Is he also identical with the Mr. Menzies, whose assistance in connexion with its State election campaign was refused by the Liberal party of New SouthWales?
– I understand that the Right Honorable R. G. Menzies, who addressed the meeting at the Sydney Town Hall last night is the same right honorable gentleman who for years has been championing the cause of democracy in Australia. At last night’s meeting, he was opposed by the enemies of democracy in this country.
page 4314
– As the Minister for Fuel, Shipping and Transport has sought the aid of advisory committees in connexion with shipping and transport problems, and as the outports of the various States can make a contribution to the solution of those problems, I ask the Minister whether it would not be helpful to such committees if they included representatives of organizations connected with, and having a full knowledge of, such outports? I refer particularly to Western Australia, the outports of which include Esperance, Albany, Busselton, Bunbury, Geraldton, Sharks Bay, Carnarvon, Point Hedland, Derby, Broome and Wyndham.
– The question of a representative on these committees for outports has been raised in Western Australia. It is purely a matter for the State committees and as the chairman of the committee in Western Australia is the Minister for Transport, I suggest that the honorable senator inform the persons who made this request to direct it to the chairman of the State committee.
– Is the Minister for Fuel, Shipping and Transport aware that in Western Australia “Ideal” milk can be purchased only upon production of a medical certificate, and that, despite that limitation of sales, chemists are frequently unable to supply that milk to customers because shipments from the eastern States have not arrived? Will the Minister investigate the possibility of assisting Western Australia in this matter?
– I have received representations upon this matter from the Western Australian Government. For some time, the officers of my department have been investigating the position. I am doing all that I can to speed up shipping services to Western Australia, but, having regard to the attitude of the Seamen’s Union and some waterside workers, I have not been able to secure the regular service that is desired. I assure the Senate that my department is doing all that it can do to improve shipping services to Western Australia.
page 4315
– Will the Minister for Repatriation state when the Senate can expect an announcement from the Government in respect to the claims of returned soldiers for increased pensions?
– The matter of pensions or allowances under the Australian Soldiers’ Repatriation Act to members of the forces, widows, children and others has been carefully examined and in due course an announcement will be made. I cannot give the exact date, but I can assure the honorable senator that the announcement will be made as early as practicable.
page 4315
– I preface my question to the Minister representing the Minister for the Interior by stating that the electoral rolls were in an unsatisfactory condition at the last election. The names of many electors had not been transferred to the, division where they lived and they could not vote. In view of the unsatisfactory state of the rolls, will the Minister take steps to have the rolls brought up to date soon in case there is an election for the House of Representatives in the Spring.
– I shall refer the honorable senator’s question to the Minister for the Interior.
page 4315
– I preface a question to the Minister representing the Minister for Commerce and Agriculture by stating that great hardships are being experienced by poultry, pig and dairy farmers in South Australia through the shortage of bran and pollard because of the low output of those commodities. Is the Minister in a position to say if anything has been clone by the Government to assist in overcoming the shortages?
– The Minister for Commerce and Agriculture has assured me that he and members of the Australian Wheat Board are doing everything in their power to push sales of flour to assist in overcoming that problem. I understand that substantial sales have been made and that the prospects arc brighter.
page 4315
– Will the Minister for Fuel, Shipping and Transport confer with the Minister for Transport in New South Wales with a view to improving the railway service between Goulburn and Canberra? On Tuesday morning, it took seven hours to travel by train from Goulburn to Canberra, which is one and a half hours more than it takes to travel by air from Sydney to Auckland. Is it not possible to arrange for a railway service between Canberra and Goulburn that will be more in keeping with the needs of a civilized community?
– I shall be pleased to bring the matter mentioned by the honorable senator to the notice of the Minister for Transport in New South Wales.
page 4315
– The Tariff Board, which enjoys the respect of all sections of industry, has submitted a recommendation on the rayon industry in Australia. Can the Minister for Trade and Customs say whether the Government intends to give effect to that recommendation?
– The matter mentioned by the honorable senator is the subject of legislation now before the House of Representatives. I trust thatI shall soon have an opportunity to introduce the measure in the Senate, and honorable senators will then learn the intentions of the Government.
page 4316
– On the 22nd March Senator Kendall asked the Minister representing the Minister for Health, upon, notice -
The subject-matter of the inquiries comes within the jurisdiction of the Minister for External Territories, who has furnished the following reply: -
page 4316
– Two announcements appeared in the press recently regarding the Government’s intentions in the matter of increasing age and invalid pensions. One report stated that the increase would be 10s. a week and the other referred to a smaller amount. “When can we expect the Minister for Social Services to make a statement of the Government’s intentions regarding an increase of age and invalid pensions?
– No decision has been made by the Government in relation to the pensions payable under the social services legislation. Therefore, any newspaper reports relating to that matter are purely speculative. The Government proposes to deal with pensions in the appropriate manner and at the appropriate time.
page 4316
– Oan the Minister representing the Acting Minister for Civil Aviation inform the Senate when the new airport at West Beach, in South Australia, will be available for use by members of the general public who travel by air?
– I shall obtain the information for which the honor.a)ble senator has asked, and supply it to him later.
page 4316
– Will the Minister for Trade and Customs say whether it is a fact that the Australian textile industry has lost a number of its local and overseas markets and that consequently there have been wholesale dismissals of employees in the industry? If that he so, will the Government cause inquiries to be made to ascertain whether something can be done to alleviate the difficulties of the industry and. prevent the wholesale dismissal of employees of textile factories that is now taking place in Tasmania and probably also in other .States?
– I am. not aware that the circumstances are as stated by the honorable senator. Recently, announcements were made regarding the protection that is to be given to our textile industry, in accordance with recommendations of the Tariff Board. The Commonwealth does not, as a rule, go out into the highways and byways in matters such as these. We have a very efficient and reliable Tariff Board. Any Australian industry that considers that it is being adversely affected by the absence of an adequate protective tariff may make an application for a hearing by the board. Applications for hearings made by a responsible organization are invariably granted.
Later:
– In my question to the Minister for Trade and Customs a few minutes ago I pointed out that wholesale dismissals are taking place in the textile industry in this country. Will the Minister have inquiries made to ascertain the cause? If the reason is attributable to the lack of our overseas markets, will the Government take steps to assist the textile manufacturers of Australia to obtain markets overseas in order that many Australians may continue to be employed in that industry?
– I have already pointed out to the honorable senator that if responsible men engaged in the textile industry were to make representations to the Government for their case to be considered by the Tariff Board, unless there were good reasons for refusing the request, the application would be granted. I understand that that practice has been followed by all Governments since the Tariff Board was established.
– I am particularly concerned with the wholesale dismissals that are taking place in the textile industry in Tasmania. If the reason is the lack of overseas markets, will the Government take steps to remedy that situation?
– It is evident that the honorable senator has a complete misconception of the functions of government. If any industry is experiencing great hardships through something beyond its control the Government would very sympathetically consider any representations of responsible men engaged in that industry.
page 4317
– In view of the fact that Australia is committed to receive large number of migrants for approximately the next ten years and as there is probably a weakness in the system of medical inspection and medical treatment of migrants arriving in this country, can the Minister representing the Minister foi’ Health say whether bis colleague has given any consideration to encouraging medical students who are being assisted under the Commonwealth Reconstruction
Training Scheme to enter the service of the Commonwealth Department of Health so that their services may be utilized by the immigration authorities?
– So far as I am aware, a thorough medical examination is made of migrants and other people entering this country. However, I shall bring the honorable senator’s question to the notice of my colleague, the Minister for Health, and request a reply direct to the honorable senator at an early date.
page 4317
In committee: Consideration resumed from the 14th June (vide page 4235).
New Clause 18a.
– I move-
That, after clause 18, the following new clause be inserted: - “ 18a. A payment of money or delivery of a security or a negotiable instrument made to or by the order or direction of an unlawful association by its banker in good faith before the date upon which the association was dissolved, or so made after that date without negligence on the part of the banker, shall be valid as against the receiver of the unlawful association.”.
The amendment is designed to deal with technicalities that may arise out of the operation of clause 18, under which the receiver is empowered to set aside transactions disposing, or purporting to dispose, of property made by an unlawful association during the twelve months which precede its declaration as an unlawful association. It has been considered necessary, therefore, to insert suitable protection for bankers, including of course, the Commonwealth Bank, who may pay a cheque drawn by an unlawful association before discovering that the association is an unlawful one.
– I agree with the statement made by the Attorney-General (Senator Spicer) that the insertion of the proposed new clause is a reasonable provision - so reasonable, in fact, that we might well have expected it to be included in the original draft of the bill.
Having made that comment, I now desire to seek some information from the
Attorney-General concerning the protection which the Government proposes to provide for bankers. The proposed new clause reads -
A payment of money or delivery of a security or a negotiable instrument made to or by the order or direction of an unlawful association by its banker in good faith before the date upon which the association was dissolved,-
I am particularly concerned about the next few words, which are - or so made after that date without negligence on the part of the banker, . . .
The dissolution of an unlawful organization will begin from the time that it is declared to be unlawful and will continue until such time as any proceedings which may be taken before a court are determined. The fact that an organization has been “ declared “ mustbe published in the Gazette, and everyone is presumed, in law, to have knowledge of the contents of that publication. In addition, great publicity will undoubtedly be given in the press to the declaration of any organization under the bill. It is obvious, therefore, that once an organization has been “ declared “ the fact will be made known far and wide. How can the AttorneyGeneral suggest, therefore, that a banker who pays a cheque drawn by an unlawful organization on hie bank will not be guilty of negligence? Why should not similar protection be extended to any individual who may be holding money in trust for an organization or may he the depository of securities for an organization? If it is proper to protect a banker after the dissolution of an organization has taken place, why should not similar protection be extended to all individuals who may he in a similar position vis-a-vis an unlawful organization as a banker?
– My answer to Senator McKenna’s first proposition is that the second part of this clause is intended only to protect the banker if in fact he does make the payment without negligence.
– It would not arise.
– It might arise. I agree with Senator McKenna that, having regard to the publicity, it is unlikely to arise, tout the honorable senator will realize that this is a common form of expression in provisions of this type. This clause provides protection only if the payment is in fact madewithout negligence.
On Senator McKenna’s second point, I suggest that such provisions are normally inserted for the protection of bankers because of the peculiar nature of banking business, the responsibilities thatbankers owe to their clients, and the difficulties in which bankers might find themselves in the absence of such protection. There seems to me to be no necessity to cover other people because they do not carry on business in the same way as bankers do. I am not aware of provisions of this kind being given a wider application than they are given in this clause.
– I thank the Attorney-General (Senator Spicer) for his explanation, hut it only confirms the argument that I put to the committee. He has not suggested a particular case that might arise where a banker would act without negligence.
– I do not know; that is all.
– No case can be put. This is a somewhat extreme protection for a banker. Everybody else in the community is bound from the minute of the dissolution. It becomes operative at a date which, I agree, it is not easy for everybody in the community to determine, but I can conceive of a situation in which a trustee of property, quite apart from a banker, might, without personal negligence, be in exactly the same position. He might have been out of Australia for a period prior to the operation of this legislation, and he might have been given some kind of post-dated document. I am not opposing the clause. It is reasonable in essence. I am merely seeking information. I am suggesting that the Government could give consideration to extending to other elements in the community the very wide protection that is afforded to bankers under this clause.
New clause agreed to.
Clauses 19 and 20 agreed to.
Clause 21 (Search Warrants).
– The Opposition does not propose to amend this clause. I rise merely to draw attention to the virtue of a full discussion of a measure of this kind. The clause as originally introduced into the Parliament left to any peace officer, or any person authorized by the AttorneyGeneral, the right, on suspicion - and it was not defined as a reasonable suspicion - to enter any place at any hour if he thought that in that place there were papers, documents or property relating to an unlawful organization. Due to the trenchant criticism levelled against that provision by the Labour party in the House of Representatives, and to the pressure that was applied, the Government abdicated its original stand. There have been allegations of delay in dealing with this hill. Whatever basis there may be for that statement, it is certainly not true of this chamber. The amendment that was made to this clause in the House of Representatives was, with the alteration of only two minor words, that submitted by the right honorable member for Barton (Dr. Evatt). That amendment demonstrated the need for the fullest discussion of this legislation. Its acceptance was a tribute, both to the viewpoint of the Labour party, and to the draftsmanship of the right honorable member for Barton. It is desirable, I claim, that a bill of such importance, and having the far-reaching effects of this measure, should be fully and amply discussed.
– It has been.
– Yes, but I think that the Attorney-General will agree that it has not been over-discussed in this chamber.
Clause agreed to.
Clause 22 - (1.) The High Court shall have jurisdiction to hear and determine any application made to it under section five, nine or sixteen of this Act. (2.) The Supreme Court of each State is hereby invested with federal jurisdiction, and jurisdiction is hereby conferred on the Supreme Court of each Territory (being a Territory forming part of the Commonwealth), to hear and determine any application made to it under section five or nine of this Act. (3.) The jurisdiction of the High Court or of a Supreme Court in relation to an application under section five, nine or sixteen of this
Act shall be exercised by a single Justice or Judge and the decision of that Justice or Judge shall be final and conclusive. (4.) The Commonwealth shall be the respondent to any application under section five or nine of this Act.
Clause consequentially amended.
.- I move-
That, after sub-clause (4.), the following new sub-clause be added: - “ (5.) For the purposes of this Act, ‘the Full Court’, in relation to the supreme Court of a State, means that Supreme Court constituted by such number of Judges as is required for the hearing of criminal appeals under the law of the State.”.
This amendment is consequential upon the introduction of a form of appeal into the measure and unless some honorable senator desires me to support the amendment more fully, I propose to move it formally.
Amendment agreed to.
Clause, as amended, agreed to.
Clause 23 agreed to.
Clause 24 - (3.) Proof in any proceedings under this Act that the name, initials or other means of identifications of a person appear -
– I move -
That, in sub-clause (3.), after paragraph (a) (ii), the following new paragraph be inserted: - “ ; or, (iia) at some other place, or in the custody of some other person, in such circumstances that the court is satisfied that the document is a document prepared or used for the purposes of an unlawful association or for the purposes of a branch of an unlawful association,”.
This clause deals with evidence, and the amendment will enable proof to be established in relation to particular matters by reference to documents not kept or found at the offices of an unlawful association, or in the custody of a member or officer of that association, but prepared or used for the purposes of an unlawful organization. The Government desires the advantage of being able to use documents of that character.
– The Opposition does not oppose the amendment, but I wish to add one thing to what the Attorney-General (Senator Spicer) has said. Without this clause many of the matters that are specified throughout clause 24 would not be admissible in evidence in a court. In concurring with clause 24 and the proposed amendments thereto, the Opposition is allowing to be treated as admissible evidence, facts, acts and writings which, in the normal course of procedure, would not be admissible at all. I draw particular attention to that phase to illustrate that the Opposition is co-operating very fully with the Government in facilitating approval of the matters that it will be sought to prove. The mere fact that the Opposition is acting in that way is the clearest indication of its desire to enable this measure to work. Throughout the debate, the Opposition has expressed on this subject a complete community of interest with the Government in the broad objectives of the bill. I have pointed out repeatedly that the differences between the Government and the Opposition relate only to methods. On behalf of the Opposition, I point out that in our acceptance of this clause and amendments and the further amendments that the Attorney-General has foreshadowed is the clearest evidence of the Opposition’s willingness to facilitate the Government’s purpose. That is in flat contradiction of things that have been said by members on the Government side throughout this debate.
Amendment agreed to.
– I move -
That, in sub-clause (3.), after paragraph (b), sub-paragraph (ii), the following subparagraph be inserted: - “ ; or (iii) at some other place, or in the custody of some other person, in such circumstances that the court is satisfied that the list, roll or record is a list, roll or record prepared or used for the purposes of an unlawful association or for the purposes of a branch of an unlawful association,”.
This again relates to evidence supplied by documents found in the possession of an unlawful association or its officers. It is desired to extend the provisions of the section to include not merely those which are found on the premises or in the custody of the officers, but a list, roll or record which has been used or prepared for thepurposes of an unlawful association if a court is satisfied that it has been prepared for that purpose.
Amendment agreed to.
– I move -
That the following sub-clauses be added: - “ (4.) Where, in any proceedings under this Act, it is sought to prove that a person was the author of any printed matter, the fact that the name of that person appears upon that printed matter as the author of that printed matter shall be prima facie evidence that that person was the author of that printed matter. “ (5.) Where, in any proceedings under this Act, it is sought to prove that any printed matter was printed or published by a person or body of persons, the fact that the name of that person or body of persons appears upon that printed matter as the printer or publisher of that printed matter shall be prima facie evidence that that person or body of person’s was the printer or publisher of that printed matter. “ (6.) For the purposes of this section -
any reference to an unlawful association includes a reference to a body of persons before it became an unlawful association under this Act;
any reference to the name of a person includes a reference to the surname of that person together with any of his Christian names, or together with the initial or initials of all or any of his Christian names; and
any reference to printed matter includes a reference to words represented or reproduced in any visible form.”.
The purpose of the amendment is to enable printed matter which has on it the name of the author to be used as prima facie evidence that the person whose name appears on the printed matter was the author of that printed matter. These are somewhat technical provisions to ensure that the clause will be effective.
– The Opposition offers no objection to the clause in the same spirit in which it has approved of the other provisions of clause 24 and amendments.
This clause has been most heavily amended and widened, and I direct attention to the rapid concurrence of the Opposition in the extension of this clause so that prima facie evidence which normally would not be admissible in evidence, may be acceptable.
Amendment agreed to.
Clause consequentially amended, and, as amended, agreed to.
New clause 24a.
– I move -
That, after clause 24., the following new clause be inserted: - “24a. - (1.) In an application under subsection (3.) of section five, or under subsection (3.) of section nine, of this Act, the applicant shall have the right to elect to have the application tried by jury. “ (2.) Where an applicant so elects, the application shall be heard and determined, as nearly as possible, as if it were a trial on indictment for an offence against a law of the Commonwealth, committed within the State or Territory of the Commonwealth in which the application is heard.”.
The relevant discussion in regard to the onus of proof might also be applied to this clause. It has been pointed out that trial by jury is one of the ordinary processes of law that has grown up over the centuries in British countries. It is safeguarded under section SO of the Constitution, where it states that trial by indictment must be byjury. Inthiscasethe Opposition does not say that in every instance there should be a. jury, but it believes that where the declared person elects to be tried by jury, it is not right that the Executive Government of the country should deny it. The allegation against an individual or an organization in the second count that the individual or organization is prejudicial to security is in effect, a charge of treason and that, in itself, is an indictable offence. Therefore the Government might by-pass in spirit the provision that is made in the Constitution under the ordinary processes of law. Treason is a crime as serious as any in the whole calendar of crimes. No person or no organization could be charged with anything more serious. Therefore, any person declared under this measure should have the right of trial by jury. Last night, the Prime Minister (Mr. Menzies), speaking in the Town Hall in Sydney, discussed these matters, and it is strange that he should have used exactly the same language as has been used by honorable senators opposite. For instance, he spoke of “ King’s Ministers “.
– Well, they are, are they not ?
– But why talk about King’s Ministers? One would think that they were blue-blooded - something special. I do not think that they carry out their duties any better than we did when we were in office, and we did not call ourselves King’s Ministers. The Prime Minister said that this bill was designed to remove certain persons from certain kinds of employment and was not a bill dealing with crime. Evidently, the Government thinks it a very light thing to brand a man as a traitor to his country, and to take away his livelihood. Particularly in a country town’, it would be a very serious matter to declare a person or an organization. A declared person would have to leave the locality, so as to escape the stigma placed upon him. He would have to go somewhere else in an effort to obtain employment. The Prime Minister said that the Labour party had already accepted the Government’s proposal to ban the Communist party, and to remove Communists from office in trade unions, and from employment in the Public Service. Then he added -
The Labour party has said that it is in favour of all that, but it is still trying to find some way to destroy the bill.
The only attempts that have been made to destroy thebill have been made by
Government supporters. So great has been public criticism of the bill since it was first introduced, that the Government is trying to get out from under. At his meeting in Sydney, the Prime Minister denied those who were opposed to him the right to reply. He accused the Labour party of unduly delaying the passage of this bill through the Parliament. There has been no undue delay, and only sufficient time has been taken to examine properly the 50 amendments to the bill that have been submitted since its introduction. The right honorable gentleman said that it was nonsense to suggest that Communists could be got at in the ordinary way. The AttorneyGeneral (Senator Spicer) has been saying the same thing. The Prime Minister said that the Government could not get at Communists in the same way “ as you would with a man who has committed an offence against the Dog Act or the Motor Traffic Act “. I ask honorable senators to note how lightly he treated the whole matter. He suggests that declaring a person to be a Communist, and a. traitor to his country, is merely something incidental like charging him with having broken a motor traffic regulation. The Prime Minister said that a committee of five persons would be appointed to screen those about to be declared, and he added that such a system appeared to be fair. We know, of course, that the committee would nave before it only the evidence provided by the security service, with whatever slant the members of that service like to put on it. The persons charged would be practically found guilty before the screening took place. Then the Prime Minister added -
But our opponents will not have any of that. They say it will he decided by twelve men chosen at random. I have never heard of such lunacy.
It is a very serious thing to suggest that the jury system is an example of lunacy. Such a statement shows clearly the trend of thought of members of the Government, and indicates that they would like to institute the police state referred to by Senator McKenna yesterday. If the Government is allowed to put its proposals into effect, we shall have in Australia the same sort of government as exists in Hungary, where Archbishop Stepinac and other church leaders were condemned.
In response to the pressure of public opinion, the Government has already accepted many amendments to the bill. No amendment could be more justified than that which I have submitted to the Senate.
– The general attitude of the Opposition towards this measure is disclosed by the amendment now before us. It will be readily admitted that, if the amendment is agreed to, the whole character of the legislation as an instrument of defence in the hands of the Government will be destroyed. Every lawfully constituted authority has naturally the right to make such rules and regulations as it considers necessary for its own safety and preservation. Mention has been made of the Australian Labour party. I am not complaining of what it does, and I merely mention it as an example to show that, when it comes to a question of its own preservation, the Australian Labour party does not always believe that it is desirable to charge persons whom it disciplines. Recently there was the spectacle in New South Wales of four sitting Labour members of the State Parliament - -
– They were not charged with treason.
– The point J am making is that they were not charged at all. Their means of livelihood was taken away from them, but they were not charged with any offence. The New South Wales executive of the Australian Labour party, sitting in secret, without preferring any charge, and in the absence of the men concerned, who had no right of appeal, declared them to be ineligible to receive the official endorsement of the Australian Labour party. By what authority and tortuous method of reasoning does the Australian Labour party place its own safety ahead of the safety of our country ? We want to put into the hands of the Government a weapon, not of aggression, but of defence. It is clear that the people against whom this measure is directed are the “ red “ wreckers of this country - our enemies. They are the people that the Labour party had in mind when, at a conference in Melbourne last April, it carried a resolution stating that it should be compulsory for all State and Federal Labour parliamentarians to become members of an industrial group and take an active part in its work - its work against communism. The official attitude of the Labour party has been made perfectly clear. It is out to fight communism. But that is not necessarily the attitude of many members of the party. For instance, Senator Morrow said that this measure stinks in the nostrils of all decent-minded persons. I have not yet heard one word of censure or reproof of Senator Morrow by either the Leader of the Opposition (Senator Ashley) or Senator McKenna. Senator Morrow made a violent attack upon Great Britain and America, and indulged in a eulogy of Russia. Is that the attitude of many honorable senators opposite?
If the Opposition secures the acceptance of this amendment, it will have the satisfaction of knowing that it has destroyed the bill completely. It is well known that a charge on indictment places a substantial burden of proof upon the Crown. I shall deal with that point at a later stage of my remarks. Senator McKenna, replying to an interjection by the Attorney-General (Senator Spicer) regarding the treatment of members of the Stevedoring Industry Commission by the Chifley Government, said, “Surely the Attorney-General must realize that there cannot be a trial unless an offence has been charged “. That is precisely the position in relation to this bill.
– The charge will be one. of treason.
– It will not be a charge of treason. Senator McKenna knows perfectly well that a person charged with treason must be tried on indictment before a judge and a jury of twelve of his fellows. There will he no charges of that kind made under this bill. As Senator McKenna has pointed out, there cannot be a trial unless an offence has been charged. All that we want to do is to deal with people whose activities are as well known to the members of the Labour party as they are to us and the people of Australia generally. We want to deal with people who, by virtue of their associations and activities, are a menace to the safety and security of this country. Senator Armstrong said, in effect, “ When we were in power we did not give them an opportunity to bs heard; we just got rid of them”. When the Attorney-General asked Senator McKenna whether the Chifley Government gave the members of the Stevedoring Industry Commission a trial, Senator McKenna said that when it was found that they were sabotaging the work of the commission, flouting its orders and behaving in a manner that the Chifley Government considered to be very undesirable, that Government, having come to the conclusion that they should not be allowed to continue to serve as members of the commission, thereupon removed them from office. Its action was quite proper, and I am not cavilling at it. But why should honorable senators opposite be inconsistent? If that action were taken against some men holding office under the Crown, why, in the name of al) that is sane and reasonable, should the Opposition want to tie the hands of the Government in this matter? Why not allow the Government to deal with the persons against whom the bill is aimed, not by sending them .to gaol, or charging them with offences, but by removing them from their positions and thus preventing them from continuing their nefarious work which is doing incalculable and irreparable harm to the safety and security of this country? If, afterwards, we find that there have been overt acts of treason, the Government can prosecute the persons who have committed those acts. Fu ehs was prosecuted in England and. sentenced to fourteen years’ imprisonment, but the damage had been done. We want to prevent that from happening in this country. We shall certainly prosecute people who have been guilty of subversive activities, if the occasion arises, but we want to prevent plans for sabotage and sedition from being put into effect.
This amendment, if accepted, will destroy the efficacy of this bill. I say emphatically that the Government will not accept it. To accept the amendment would be worse than to give a man a watchdog and then remove its teeth. The attitude of the Opposition to the measure in general will be judged by its attitude to this amendment. If it presses .the amendment and secures its acceptance, it will have destroyed the efficacy of the measure. Since the 27th April the Government has shown that it is prepared to take the Opposition and the people fully into its confidence. We have no cards up our sleeves. We want to prevent “ red “ communistic sabotage, treason and treachery. We want the assistance of the Opposition to fashion a weapon of defence against communism. We have accepted ni any amendments since the 27th ApriL We have been conscious of the reactions of the Opposition and have listened to the suggestions that it has made. We have heeded public opinion. From the country’s point of view, it is important, not only that justice shall be done, but a lso that it shall appear to be done. This measure is not aimed at innocent members of the community. It is aimed only at wreckers and those who want to destroy our Constitution and our way of life. The Government lias accepted all reasonable amendments. As Senator McKenna knows, it has incorporated in the bill many matters that in the ordinary course of events would be dealt with administratively. We have done that in order to make assurance doubly sure and to convince the people that our only purpose is to protect our Constitution from those “ho want to destroy it.
– The Minister for Trade and Customs (Senator O’Sullivan) is trying to mislead, not only the committee but also the people of Australia. He raised a political issue to bolster up a legal argument. There is no analogy between the cases of the politicians to whom be referred and the cases of people who will be declared under this hill. Can any reasonable comparison be made between the refusal of a political organization to endorse some of its members as candidates for election to a State Parliament and a charge of treason? The Minister’s argument was absurd. With regard to political endorsement, I should like the Minister to tell me why Senator Poll, a returned serviceman, was refused endorsement by the Liberal party in Queensland after twenty years honorable service in the Senate. If the Minister will give me that information I shall roll him why four candidates were denied endorsement bv the Australian Labour party in New South Wales. Reference has been made to what happened in connexion with the Stevedoring Industry Commission. I point out that I warned the members of that body who have been mentioned that if they took certain action the commission would be dissolved and their positions would be declared vacant. Their dismissal is not analogous to the position that is facing us to-day. All we ask is that a declared person should have the right to elect to be tried by a jury. That right is not denied to the greatest criminal or a person charged with the gravest crime in the calendar. Yet the Government contends that a person that it declares should not have the right to elect to be tried by a jury of twelve persons. That is tantamount to setting up a police state. As I remarked a few moments ago, when this matter was discussed by the Prime Minister at a meeting in Sydney Town Hall last night he stated that it would be lunacy for trial by jury to be included in the provisions of the bill. In effect, the right honorable gentleman said ‘ that by selecting twelve people at random to constitute a jury an accused would be tried by twelve lunatics. I would rather have such a jury try me than the five people proposed by the Government. The Opposition is going to enforce acceptance of the amendment in order to preserve the principles of justice that have been enjoyed for many years in this country.
– The mere fact that the Minister for Trade and Customs (Senator O’Sullivan) has stated that the proposed amendment would destroy the bill does not make that a fact. Honorable senators opposite have repeatedly stated that the acceptance of amendments moved by the Opposition would, in effect, kill the bill. However, I remind the Senate that the Government has already accepted about 50 amendments.
– They were not all moved by the Opposition.
– Most of them were Government amendments.
– That is true.
– I point out., however, that those amendments were only moved by the Government after they had been proposed by Labour through the press of this country. The history of this matter is that the Prime Minister (Mr. Menzies) introduced the bill in the House of Representatives, although the AttorneyGeneral had previously had a lot to say about it. I remember seeing his photograph in a newspaper alongside a report of a statement that he had made about the proposed measure. In that same newspaper article, it was reported that the Prime Minister had stated that the Government would not accept any amendments.
– That is not right.
– The right honorable gentleman’s statement was given great publicity by. the press.
– The Prime Minister stated that he would not depart from the principles of the bill.
Honorable senators interjecting,
– I thank honorable senators for their assistance, but I point out that if they do not allow me to make my speech unaided I shall never become a successful speaker.
– The Prime Minister said that he would not have the purposes of the bill destroyed..
– We know all about the wriggling around that has taken place since he made the statement that I have mentioned. However, it has only been during the last couple of days that the Attorney-General (Senator Spicer) has denied it in this chamber. The Opposition has made the charge a number of times during the past fortnight.
– It has always been denied.
– The Minister for Trade and Customs now contends that acceptance of the proposed new clause would destroy the whole purpose nf the bill. How in the wide world could (hat be so after all the machination? that have occurred during the debate on this measure? The existing practice in this country is that when an accused appears before a court he has the right to elect whether he shall be tried by a judge or a jury. If this very serious charge were preferred against me I should elect to be tried by a judge. At least I would have the law on my side, rather than have to contend with the hysteria and emotions of laymen. In time of war I would always elect to be tried by a judge, in order to secure the cool-headed approach of a lawyer to the charge. The Opposition would like to conclude the debate on this measure in a nice atmosphere. We on this side of the chamber are rather fortunate to have the guidance of only one lawyer, whereas on the Government side of the chamber three lawyers are proffering advice.
It has been claimed time and again that there is no charge involved in this matter. Surely it is obvious to any reasonable person that a very serious charge will be involved. The fact of calling a person a Communist is in itself a very serious charge in the community to-day. The second count, that a person’s continued existence in the community is likely to prejudice the security of the country is the second leg of that very serious charge. It is not sufficient to say that there would he no loss of rights, such as by imprisonment or a sentence of death in certain cases of treason. As the Opposition has pointed out many times, a very serious and continuing penalty will attach to a person declared. The other day Senator McCallum described the position as similar to a public service trial. I point out that usually a State public servant charged with a misdemeanour is tried by a judge. If found guilty he may be merely fined £5, or forgo a £12 increment. In this instance, however, a person will be removed from his employment in the public service or as a trade union official when declared. He will not again be able to hold such an appointment. A man’s reputation would be permanently damaged by his being declared. In the first place the measure bans the Australian Communist party and makes provision for dealing with its property. The Opposition has not opposed that part of the hill. Moreover, as Senator McKenna has already pointed out, the Opposition has agreed to the strengthening of clause 24 in the way that the
Government desires. In fact, although the Attorney-General moved a number of amendments to the clause to tighten it up, the Opposition did not raise its voice against them. Yet, in effect, the Attorney-General has now implied that the Opposition seeks to protect the Communists :by insisting that they shall hp. entitled to trial by jury. There exists in our community to-day a body of people known as the Australian Communist party, which is deliberately trying to wreck the economy of this country. As far as that body is concerned, the Opposition says to the Government, “ Go ahead and deal with that body as you will “. There is evidence that the Government has some doubt about the justice of the whole legislation. It knows perfectly well that innocent people will be drawn into its dragnet. Whilst the Opposition declares unequivocally that people who are found to have been communists or subversive agents must pay the penalty without any chance of escape, we are concerned that other people against whom action may be taken under this legislation shall be convicted only after observance of the -due processes of law. Whilst many honorable senators on both sides of the chamber have indulged in irrelevancies and have wandered away from discussion of the actual provisions of the bill, I must express my regret that the Minister for Social Services (Senator Spooner) should have made such grossly unfair statements as he did.
– Let the Opposition prove me to be wrong by giving us a bill that will work. Honorable senators opposite know very well that the bill will not work when they have finished with it.
– The Minister does not want it to work.
– The Minister accused us of deliberately pandering to the Communists because of what, he alleged, we owe to them. Was ever such an untruthful accusation or such a foul charge made in this chamber? When I heard the Prime Minister (Mr. Menzies) say in the House of Representatives that he could declare one Labour senator, and that one Labour member of the House of Representatives would only escape declaration by the skin of his teeth, I was shocked. However, I chose to regard the right honorable gentleman’s remark as one that was made in the heat of debate. After hearing the allegations made by the Minister for Social Services and other Ministers and honorable senators opposite, I am led to wonder whether the members of the Communist party are, after all, the real targets of this legislation. As I have pointed out previously, the Government does not need to impress upon members of the Opposition that the Communists endanger our institutions. After all, the activities of the Communists are directed, not at the Associated Chambers of Commerce, the banks or the Liberal party, but at the Australian Labour party and the great trade union movement. Labour has been consistent in its attitude towards this legislation. We say: “Do what you like to ‘the Communist party; we have no objection to that”. We have permitted the Government to strengthen the provisions of this bill that are directly aimed at that party by agreeing to the successive amendments to those provisions that it has introduced. We have been consistent also in opposing the undemocratic and totalitarian provisions of the measure, and it is because we want the ordinary safeguards of freedom to operate that we support the amendment moved by the Leader of the Opposition (Senator Ashley). The purpose of that amendment is to ensure that a person accused of subversive activities shall be given the benefit Of the ordinary right of trial by jury. How can the Government justify its assertion that the inclusion of such a democratic provision will destroy the bill? We have agreed to the inclusion in the bill of an extraordinary provision to enable the Government to take effective action against any person whose initials were found on matter seized in the raid on Marx House in July, 1949. The effect of clause 24, as now amended, is that the mere initials of a person shall be prima facie evidence that the person concerned was a member of the Communist party. That is a very far-reaching provision, and one which would not ordinarily be considered in a democracy. However, because of our willingness to assist the Government to destroy the Communist party, we have agreed to it, as we have also agreed to a number of other far-reaching proposals. Yet the Minister for Trade and Customs claims that the Opposition, by insisting that ordinary, decent members of the community shall be given the opportunity to be tried before a jury if they so elect, is drawing the teeth of the bill. That contention is absurd. The suggestion that jurors will not convict people who are charged under this legislation is indefensible. If I were charged I would not elect to be tried by a jury. It is obvious that the real reason why the Government will not permit the trial by jury is a political one.
– A lot of sentimental and maudlin claptrap has been talked about the jury system. I think that if Senator Willesee were charged with an offence and had the right to elect whether he would be tried by a judge sitting alone or by a judge and jury, he would be foolish if he did not elect to be be tried by a jury. The jury system, in my opinion, is a failure because many of those who serve as jurors will not accept the moral responsibility expected of them, and the undoubted tendency of many jurors to-day in criminal trials is to allow their sympathy with an accused person to override their sense of justice. One has only to “think of the scores of cases reported in the press from which it is obvious, on the evidence, that the accused must have been guilty, yet they are acquitted by juries. The bill deals with people who are acknowledged enemies of the community, and, as I said in an earlier speech on this bill,’ the Opposition, by insisting upon its amendments, is simply making the way of the Communist much easier when he is detected. Those of us who are acquainted with the procedure in the courts know that when a jury is being empanelled a lot of manoeuvring takes place. A battle of tactics goes on to exclude certain people from the panel-
– The honorable senator does not believe in trial by jury?
– No, I do not believe in it. I consider that it failed long ago because of the reluctance of jurors to assume .moral responsibility for their verdicts. If the amendment moved by the Leader of the Opposition (Senator Ashley) were agreed to, the result would be that in practice only one Communist sympathizer would need to be included in a jury and the accused would be discharged. We must be sensible above all things and look at the matter realistically. Despite the protestations of members of the Opposition, who have talked a lot of twaddle about the Government not wanting the bill to be passed, and have made other equally fatuous- statements, it is clear that many of them do not wish this measure to be effective. The present proposal to include in the bill provision for trial by jury is sheer sentimental claptrap, which is calculated to play up to a certain section of the community.
– Senator Wood has shown just where the Government stands on this matter. Bie has shown that a streak of fascism runs right down from the Prime Minister (Mr. Menzies) to the back-benchers of the Government parties. ‘ I am deeply indebted to Senator Wood for the admission that, in his opinion, trial by jury is not honest.
– It is not.
– I ask the committee to mark those words. The Government is trying to supplant the ordinary processes of law with a police state in which the Executive will determine whether the people shall retain their liberty.
– No, a court of law.
– The Opposition is supporting the retention of the ordinary processes of law, but the Government’s proposal is to deny to declared individuals recourse to the courts. Senator Wood said that a lot of sentimentality was talked about trial by jury. He adopted an attitude similar to that of the Prime Minister. A declaration under this measure will carry with it the worst possible odium. In effect, a declared individual will be charged with treason, but he is to be denied the right of a trial by jury. The Prime Minister has said that trial by jury under this measure would be lunacy, but the Opposition maintains that a declared individual should have the right to he tried by a jury if he so desires. I should be satisfied with a jury composed of even honorable senators opposite, with the exception of perhaps Senator George Rankin, Senator Maher, Senator McCallum and Senator Guy, and I would have the right to challenge them. The Prime Minister talks about picking people at random. I remind him that an accused person has the right of challenge when a jury is being empanelled. As I have said, I should be prepared to place myself in the hands of a jury drawn from honorable senators opposite with the exception of the four that I have mentioned. Those men, by their speeches and actions, have given evidence that they possess fascist ideas.
– I rise to order. I object to the word “ fascist “, and I ask that it be withdrawn.
– I did not apply the word “ fascist “ to the honorable senator.
– The Leader of the Opposition mentioned my name.
– If the honorable senator considers that the term had particular application to him, I withdraw it. I repeat that any person who has been declared under this measure should have the right to a trial by jury if he so wishes. That is the ordinary process of the law in this country, and I am surprised at the manner in which it is ignored in this bill. The Prime Minister has said that it would be lunacy . to provide for the trial of declared persons by jury. Backbenchers of the Government parties apparently hold the same idea. I ask any honorable senator opposite to place himself in the position of an individual who has been declared. “Would he not prefer to be tried by a jury than by a single judge? I am s-ure that he would. Whether the Government opposes the Opposition’s’ amendment or not, we propose to insert it in this bill.
– I rise to make a personal explanation. The Leader of the Opposition claimed that I said that I would deny a declared person access to the ordinary processes of law. I said nothing of the kind. I said that I objected to the jury system. I believe in trial by a judge, and not by a jury.
– I support the Opposition’s amendment. I am surprised at the multitude of reasons that have been advanced by the Government for the abandonment of this long-standing practice in British communities. When one examines the bill which, I hope, is about to leave this chamber - incidentally the Senate will be a very tame old place without it - and compares it with the original measure that was introduced by the Government some weeks ago, one is inclined to excuse honorable senators, who may entertain some doubt as to what it contains. Amendment after amendment has been accepted by the Government. In effect, the bill has been re-born under pressure from , the Opposition, or as the result of the public outcry. The Government has changed its front as often as many unemployed people had hot dinners during the depression.
Senator Woods’s remarks about the jury system were most alarming. I admire him for his candour, but human nature being what it is, I have yet. to learn that it is wise to depart from the long-established processes of the law. Most eminent legal authorities are opposed to any change in a system that has given universal satisfaction over such a long period. The jury system has proved adequate to deal with every charge that is incidental to human frailty. 1 sincerely trust that the Opposition’s amendment, which seeks, not to make trial by jury compulsory, but to give an accused person the right to such a trial if he so desires, will be agreed to.
– The discussion on this clause shows some sign of departing from the real point at issue between us, and developing into a general discussion on the merits of the jury system. I am a firm believer in the jury system, particularly in criminal matters, and I am sure that the same may be said of the Prime Minister (Mr. Menzies). The general efficacy of the jury system is not in dispute at the moment. The issue is the suitability and desirability of permitting a jury to determine a matter of national security which already has been determined by those who are responsible for the maintenance of national security.
The Leader of the Opposition (Senator Ashley) said that the persons with whom we are concerned in this measure are persons who are charged with treason. That is entirely false. A person who has committed treason will be charged with the offence of treason, and this Government will have no hesitation in pursuing that course. The Government will then have upon itself the onus to prove beyond all reasonable doubt that such a person has committed treason, and, if it discharges that onus, the person concerned will serve a suitable term of imprisonment; but charges of treason are outside this picture altogether. Let us assume that the Government finds in its employment a man whom it believes to be a Communist. The Government solemnly comes to the conclusion that that person is likely to engage in activities prejudicial to the security of this land. It does not reach that conclusion until the material has been examined by a committee of five, including three very responsible officers.
– What evidence will there be?
– Never mind that. Let us assume that the material is placed before the committee of five, and that the committee agrees that the person concerned is a Communist and further that he is likely to engage in activities detrimental to the security of Australia.
– What is that but treason ?
– He has not committed it. He is likely to commit treason, and we want to prevent him from doing so.
– The AttorneyGeneral is distorting his own hill.
– Not at all. The words are -
I shall test the matter on the basis that a person is considered likely to engage in such activities. Surely, prevention is better than cure. I hope .that this Government will not be idle until acts pre judicial to the security of the country have been committed. We want to prevent such acts. The committee comes to the conclusion that the person is likely to engage in those activities. The Government unanimously supports the conclusion of the committee, and the Governor-General makes a declaration accordingly. The Opposition’s proposal is, that the declared person should be able to appeal to a jury. In that event, the Government would be charged with the responsibility of proving beyond all reasonable doubt that the person was likely to engage in activities prejudicial to our security. If one man out of the jury of twelve said, ‘“‘No, he is not such a person “, that person would have to be left free to carry on his nefarious activities. That is the proposition that the Opposition is advancing.
– The AttorneyGeneral is putting it in reverse.
– I am not. If honorable senators opposite have any sense of responsibility in regard to this matter, they will face up to the problem and tell us what their solution is. Let us assume that the committee of five is unanimously in favour of the view that the person concerned is likely to engage in activities prejudicial to our security. The Government itself is unanimously of the same view, and, in the interests of national safety, it wants to get rid of the man. Honorable senators opposite apparently believe that the safety of Australia should be prejudiced merely because one man on a jury of twelve disagrees with everybody else.
– That is pure humbug.
-That is the Opposition’s proposal, and that is what is pure humbug.
Sitting suspended from 12.45 to 2.15 p.m.
– I was examining this proposition having regard to the fact that a man may be released from the consequences of a declaration made by the Government hy the failure of the jury to agree in the proceedings which are contemplated by the new sub-clause. A declaration by the Government that a person was engaged or was likely to be engaged in activities prejudicial to the country could! be overruled by one man in a jury of twelve. Presumably the Government then could only make another declaration and face another trial before a jury which might have exactly the same result. That is a preposterous proposition in relation to circumstances such as these. If the analogy of court proceedings is followed, the person in question might be declared a second time and go through another trial with the same result, perhaps because of one obstinate man on the jury. The Opposition claims that a man must continue to be employed by the Government despite the fact that eleven men on the jury, the Government and the committee may be satisfied about the prejudicial nature of his activities. I am not reflecting on juries. I have the greatest respect for the principle of trial by jury, especially in criminal cases, but that has no association with the claim that is made by the Opposition that this matter is suitable for determination by a jury. In effect, the Opposition claims in this new sub-clause that the Government must prove its case beyond reasonable doubt as if a man were charged with murder. A jury may be left in a state of mind where it may say, “ We are not too sure about this fellow. He is the sort of person who might engage in activities likely to be detrimental to the defence of Australia or he may not. We cannot make up our minds “. In those circumstances, according to the Opposition, the man should be left in a position in government employment. That arises from the fact that the Opposition insists that the same onus of proof shall be put upon the Government in these proceedings as in the case of an indictment.
– If it is a question of defence, why does the Government have to rely on this hill to deal with a person of that character?
– It is necessary to rely on some legislation. The Crimes Act may be sufficient to deal with some things, but it is not sufficient to deal with this. The Opposition is saying, in substance, that no man should be removed from the Government service, or from an important official position in a union, unless it has been proved that he has committed treason. It suggests that unless it can be established beyond reasonable doubt to the satisfaction of all twelve men on a jury that he has committed treason or is likely to commit treason, he must remain in the position that he occupies, able to carry on the activities which the Government has declared to be detrimental to the defence of Australia.
– That is because the Government will declare everybody a Communist. That is the AttorneyGeneral’s own interpretation.
– The Government will not declare everybody a Communist. It has inserted a definition of a Communist. I have invited the Opposition to improve that definition if it can, hut it has not made one single suggestion. I have had the advantage of examining the bill which is in process of being passed by the South African Parliament and the definition of a Communist in the bill now before the committee is the mildest possible thing compared with the definition in the South African bill.
– The Attorney-General is sham-fighting on the definition.
– There is noshamfighting on it at all. It is interesting to find that the definition in the South African bill proceeds along the same lines as that in the bill now Before the committee. It states -
Communism means the doctrine of Marxian socialism as expounded by Lenin.
That part is substantially the same as the definition in the Australian hill.
– Did the Government copy the South African bill ?
– No, we did not. The definition in the South African hill continues - the doctrine of Marxian socialism as expounded by Lenin or Trotsky, the Third Communist Internationale (the Comintern) or Communist Information Bureau (the Cominform) or any related form of that doctrine expounded or advocated in the Union for the promotion of the fundamental principles of that doctrine.
– What is the date of that cable which the Attorney-General is reading ?
– It is dated the8th June and it was received on the 9th June, long after the definition in the Australianbill was formulated. If anybody has any complaints about the width of the definition, that is a complete answer and it provides some confirmation of the view that the Government is on the right track. I have given three instances of it, all of which were reached independently. They are the views expressed by Sir Charles Lowe in his report, the definition in the bill which was formulated quite independently of that report, and that portion of the definition of communism which is to be found in the South African bill which was also framed independently. The definition in the bill before the committee is limited enough, and only people whocome within that definition can be declared. I have advanced sufficient reasons already to indicate how impossible it is to remain responsible for the defence and security of the country if the Government is to he overruled by a jury.
– Order ! The Minister’s time has expired.
Motion (by Senator McLeay) negatived -
That the question be now put.
.- At least I can say that the Government is completely consistent in opposing this provision. One could not expect anything else from the Government when it has decided that, the allegation that a person is prejudicial to security or is likely to be prejudicial to security is not even to go before a judge. On that ground the Government must be consistent and deny right of access toa judge and jury. So at least it is preserving intact the principle it has enunciated that, having usurped all the judicial functions of a court by being accuser, judge and jury and the final awarder of punishment, it does not want that impregnable totalitarian position assailed. It appals me to hear Ministers speak so lightly of the allegation that a person is prejudicial to security.
– Honorable senators on this side have done nothing of the. kind.
– The Minister for Social Services (Senator Spooner) referred to the whole argument as being about a perfectly minor matter.
-Senator Spooner was discussing the onus of proof.
– He was speaking of a declaration and the consequences that would flow from it. The Opposition is appalled at the light-hearted way that the Government regards an allegation against an individual that he is prejudicial to security. The Attorney-General (Senator Spicer) proceeded to say that that is not a crime and that it is not an offence to be prejudicial to security under this bill. That might be true in some completely technical sense in the way that the bill is drawn. But any thinking person who found that another was labelled prejudicial to security must regard that person as a traitor to his country. The allegation plainly implies the foulest crime that an individual could commit in a community.
The Opposition is completely appalled at the levity with which members of the Government regard a. charge of that nature. It is appalled also at the fact that the Government will allow no recourse to a court on that matter, let alone a hearing before a jury. The inconsistency of followers of the Government was shown by Senator Wood. He does not believe in trial by jury. I invite him to say whether he is prepared to’ allow a judge to adjudicate on the allegation of an executive government that some citizen in this country is a traitor. I support every word that the Leader of the Opposition (Senator Ashley) has said on that point. It is not a matter of little consequence. I invite any member of the Government to tell me a more grave allegation that could be made against any citizen.
– The actual charge of treason.
– I shall deal with that presently if the Minister for Trade and Customs (Senator O’Sullivan) has any evidence to support a charge of treason. If there is any evidence let alone all the evidence or, to use the words of the Attorney-General, the soundest possible evidence, there is a complete duty on the Government and every member of it to indict the person and put him before a court.
– That is nonsense. How can a man be indicted because he is likely to be prejudicial ?
– I said if there was any evidence of treason. That is the most extraordinary clause in the bill. I invited the Attorney-General last night to tell the committee how any person could be said to be likely to prejudice security. How would the AttorneyGeneral determine that? The AttorneyGeneral made no attempt to reply to that question and other questions that I put last night. He has now introduced the question of definition of a Communist and admitted that it was wide. It is exceptionally wide, but the Opposition is prepared to let it stand to allow the Government full opportunity to do what it can against communism in Australia. The Opposition has not attempted to amend the definition of “ Communist “ in the bill, although we know that it is very wide. We say, however, that because it is so wide, proper safeguards should he applied through the ordinary processes of law.
– That is already provided for in the case of a declaration that a person is a. Communist.
– Does the AttorneyGeneral seriously suggest that the allegation that a man is a Communist is more serious than the allegation that he is prejudicial to the security of the country? I am sure the Attorney-General would not say that, hut he is proposing that the right of appeal shall be granted in the case of the less serious charge, while being denied in the case of the graver charge. The Attorney-General said that no alternative definition of “ Communist “ had been suggested. The Opposition deliberately agreed to leave the definition wide so as to give the Government every opportunity to pursue the purpose in which we are all interested. However, if the Attorney-General wants another definition, I invite him to consider the one supplied by a very eminent legal authority, the Dean of the Faculty of Law in the Melbourne University, Professor Friedmann, who, in a letter to the Melbourne Age of the 10th June, suggested that the criteria should be something like this -
Actions or active membership of an organization directed at the overthrow of constitutional government by unconstitutional means.
– Why did not the Opposition move an amendment embodying such a definition ?
– As I have explained, we deliberately left the definition wide so that the Government would be free to achieve our common purpose, but we want all proper checks and safeguards to be imposed by the rule of law. One such safeguard is trial by jury, not as a matter of obligation, but as the choice of the person accused. In Australia, trial by jury is not confined to criminal charges. Ordinarycivil and divorce cases can be heard before a jury.
– In some States.
– Perhaps it is only in some States, but in those States it is a well-estahlished part of the legal system that civil and matrimonial cases may be heard before a jury. For instance, a jury may he empanelled to determine a person’s liability to pay, or to assess the amount of damages that the person must pay. If the right of trial by jury is conceded in purely civil actions, why should it not be conceded in the case of a person charged with subversive activities?
– So that one man out of twelve on a jury may upset the whole proceedings ?
– Such a thing if not possible in Tasmania, at any rate, where a verdict may he taken from a majority in a jury.
– In criminal cases ?
– Yes.
– What is the majority?
– A majorityof ten. I do not propose to argue the matter further. The Government, having taken the extraordinary stand that a person charged with subversive behaviour may not have access to a court at all must, in order to be consistent, maintain that he shall not have the right to he heard by a jury. Therefore, I do not propose to take up the time of the committee in arguing a proposition which is clearly unacceptable to the Government.
– The Minister for Trade and Customs (Senator O’Sullivan) gave no sound reasons for the Government’s refusal to accept the amendment. He spoke of the four sitting Labour members of Parliament in New South Wales who were refused endorsement by the New South Wales executive of the Australian Labour party, and he sought to compare their situation with that of a person declared under this legislation. He said that the Labour members had no right of appeal. Only a person who is ignorant of the democratic rules of the Labour party would make that statement. The four men concerned had the right of appeal to the highest authority in the organization. In that, their position was quite different from that of Senator Foll, who was refused endorsement by his party so that Senator O’Sullivan might take his place. Senator Foll had rendered great service to his party, and to the country, but he was given no right of appeal. The statement of the Minister for Trade and Customs was a stupid one, and is unworthy of further comment. He added that, if the amendment were agreed to, it would destroy the effectiveness of the hill. That also was a stupid statement, and he offered no reason in support of it. The Minister has opposed the Labour party’s proposal that persons who are declared under the organization shall have the right to be tried by a jury. Senator McKenna has pointed out that the system of trial by jury applies in cases involving the most serious offences with which a man can be charged. It also applies in civil cases, in which either the defendant or the plaintiff has the right to demand a hearing before a jury. Only minor charges, such as those brought under traffic regulations, may not be heard before a jury. If the Government believes that the charge against a person declared under this legislation is one of minor importance, what is all the fuss about ? Actually, only premeditated murder is a more serious offence than that with which a declared person would he charged. The Minister for Trade and Customs said that there would be no need for a jury in cases that would be heard under this legislation, because no charge would be preferred, and no offence would have been committed. Well, if no offence is committed, why declare the person or the organization ? Any one who reads the preamble to this bill must reject the suggestion that no charge is made against a declared person or organization. Unless the declaration is removed, the person is branded for life as a traitor.
Senator Wood said that he disapproved of the jury system because it was unfair. He said that a Communist might be on the jury that heard a charge under this legislation. I point out that the Government claims to know all the Communists in Australia, and they will be declared under this legislation. The Government would be represented at a trial by counsel, who could challenge any Communist called to serve on the jury. Senator Wood knows that perfectly well, but he may have been playing to the gallery when he made his statement. The AttorneyGeneral said that he believed in trial by jury on criminal charges. He has spoken several times on this issue, but he has not yet made it clear what would be the nature of the charge preferred against a declared person. At one time, he suggested that it would be a criminal charge. At another time, he suggested that there would be either no charge at all, or that it would be a trivial one. The Attorney-General has not explained how peace officers, or the members of the screening committee, will know when a man might commit treason; yet, on the assumption that he might commit treason, a man could be branded as a traitor to his country. Against such a declaration he is to have no right of appeal, whether to a police court, a magistrate’s court, the supreme court of a State, or to the High Court of Australia, and he is to be denied the right to be heard by a jury of his fellow Australians.
The Attorney-General said that, if a declared person were tried before a jury, the whole proceedings might be upset by a disagreement on the jury caused by one member. The charge against the declared person might be no more than that he was likely to commit treason at some time in the future. No time would be stated in the charge. It might be next month, or next year or in five years time. The AttorneyGeneral says, however, that the person against whom such a vague charge was made would be a menace to the security of the country if nothing were done about him. Certainly, it would he a grave affront to justice, and a denial of the democratic rights for which our soldiers fought, if such a person were refused the right to he heard by a court. The Attorney-General made a great fuss over the possibility of a declared person getting off because of the obstinacy of one member of the jury; yet in the same speech, and almost in the same breath, he said he agreed that criminal offences should be tried by juries. In cases such as those, the jury .might disagree. Apparently he believes it to be right that a maniacal, cold-blooded murderer should be tried by a. jury, despite the risk that he might be freed and given an opportunity to commit other murders, but he does not agree that persons declared under this measure should have the right to trial by jury, because one man on the jury might disagree and the defendant might be cleared of the charge.
The other point made by the AttorneyGeneral was that it would be unwise to allow a declared person about whose loyalty there were grave doubts to resume his position in the Public Service. The Attorney-General and the Minister for Trade and Customs know very well that if the Public Service Board suspects that a public servant is using his position in the Public Service to engage in treasonable or subversive activities, there are ways and means by which it can transfer him to a position in which he can do no harm. I do not doubt for one moment that if this Government considered that a public servant was acting in that way it would transfer him to another position in which he could do no harm. If it did not do so, it would fail in its duty to the people of this country. The argument of the Attorney-General has no solid foundation. The simile that springs to my mind is the use of little wooden props as the foundation for a three-storey concrete building. His argument has fallen flat. If the Government agrees that persons accused of major and minor crimes should be tried by jury, why does it disagree with the proposition that persons declared under this measure should also have the right to trial by jury?
– I should like the Attorney-General (Senator Spicer) to tell the committee what he would do in the case of Dr. James. Let us assume that Dr. Jameshas been discharged because, in theopinion of somebody, he is likely to do something prejudicial to the security of this country. That is merely an assumption, in the absence of an explanation. I have a copy of the document that Dr.. James received from the medical superintendent. It is addressed to “ Dr. P. R. James, Resident Medical Officer, Repatriation General Hospital, Heidelburg”, and reads as follows: -
– I rise to order. As I understand the position, the committee is now considering whether in cases under this measure there should be a right to trial by jury. I submit that the dismissal, under an existing law, of a public servant has nothing to do with the proposed new clause.
– If Senator Cameron connects his remarks with the clause, he will be in order. .
– Dr. James has been denied an inquiry into his dismissal. If the amendment moved by the Leader of the Opposition (Senator Ashley) were accepted, he would have the right to demand an inquiry, but at the present time he has not. I invite the Attorney-General to say what he would do in a similar case, where a man considered that he has been wrongfully discharged. Under existing law, he has no right of appeal. If the bill were passed in the form in which the Government wants it to be passed, he would still have no right of appeal. I have cited a recent case; so that the Attorney-General can, .if he so desires, give us some idea of what he would do in similar circumstances. He has said, to use his own words, “ trial by jury is a. preposterous proposition “.
Senator -Spicer. - I did not say anything of the kind.
– Who is to try a person who considers that he has been wrongfully accused and who, in the opinion of at least 40 doctors with whom he has practised-
– I rise to order. I submit that the case to which Senator Cameron has referred has nothing to do with, this clause, and that it is not in order to discuss the circumstances of the case.
– I have asked Senator Cameron to confine his remarks to the clause.
– I am attempting to do so. The Attorney-General cited hypothetical cases. I have referred to an actual case, hut I shall now refer to a hypothetical case. Let us assume that a doctor in a certain hospital has been discharged, and that he has received from his immediate superior a communication stating that his services are no longer required, but giving no reason for the termination of his employment.
– I rise to order. I submit again that the circumstances that Senator Cameron is recounting have nothing to do with this bill.
– Order ! I have already said that if Senator Cameron connects his remarks with the proposed new clause he will be in order.
– I am attempting to establish to the satisfaction of the Attorney-General, although I fear that it will be impossible to do so, that trial by jury has its origin in star chamber methods. In the past, the gross abuse of power by judges and kings aroused the resentment of the people. The pressure that was brought to hear upon those who constituted the judges in those days was so great that the Crown gave way and agreed to trial by jury.
– Trial by jury was initiated before the Star Chamber was established. The honorable senator has made a chronological error.
– According to my reading of the history of the law, trial by jury has its origin in the gross abuse of power by kings and judges in the past.
It has been said that cases under this measure will be screened by a committee of five. Possibly Dr. James was screened by a committee of five. Let us assume that the Minister for Social Services (Senator Spooner), the Minister for Fuel, Shipping and Transport (Senator McLeay), the Minister for Trade and Customs, the Attorney-General and the Prime Minister (Mr. Menzies) were charged with the duty of undertaking the screening. Their exhibitionism, prejudice, hysteria and emotionalism suggest to my perfectly unsophisticated mind that they are fitted- neither by temperament nor education to screen any! bodyThey prejudge everything. That is what has happened in Dr. James’s case. He has been given no reason for his discharge, and he has been denied a right of appeal. His career in the government service has been ruined. According to the press, 40 doctors with whom he practised have signed a document requesting his re-instatement, and a large number of patients in the hospital have also requested that he be reinstated. The Government does not propose to. do anything.
– We propose to govern, and not to allow other people to do so.
– There has been and always will be such a thing as unjust government. The question that we must ask ourselves is : Who is to judge the judges? I do not regard most of these judges as being ultra-intellectual or even ultra-just. I have found in my experience that the more you delegate power to those who would dominate or rule you, to the degree that you delegate that power the power is abused. The Labour movement came into existence because of the injustices that were perpetrated by people to whom power was delegated. This Government has asked that power similar to the power that was exercised by Mussolini, Hitler and other dictators be delegated to it. In the light of our experience, we should not be worthy to represent the workers of this country if we were prepared to delegate that power and to say, in effect, that we had complete confidence in the Government. I, for one, have not, particularly when I consider the provisions of the bill in its original form and the savage and prejudiced utterances of the Prime Minister. I believe that the right honorable gentleman is actuated more by feelings of revenge and a desire to dominate than a desire to do justice.
As I have said, I am concerned about the case of Dr. James. When the Attorney-General tells me what he is prepared to do about the case of a mau with a splendid reputation-
– I rise to order. I submit that the clause has nothing to do with the case of Dr. James.
– I have said that Senator Cameron will be in order if he connects his remarks with the clause.
– If this measure is passed in its present form, there will be many more victims.’ Indeed, I believe that that is intended. I remind the committee that the Prime Minister,’ in the House of Representatives, read a list of names of persons and subsequently had to admit that he had made some mistakes. The right honorable gentleman is a King’s Counsellor, a King’s Minister, and a man with a legal training. In this Parliament - the highest tribunal in the land - he indicated a number of men without having first carefully ascertained the facts. “We were told that the facts would be carefully considered, but, apparently, they were not carefully considered as far as the Prime Minister was concerned. In pressing for trial by jury, we want to give any person who i9 likely to be indicted or who is actually indicted, every possible facility to prevent a gross miscarriage of justice.
– If Senator Cameron is concerned about some one who claims to. have been wrongfully dismissed from the service of the Government, the best thing that he can do i9 to tell his friend to consult a good solicitor.
Motion (by Senator O’Sullivan) negatived -
That the question he now put.
– The Attorney-General (Senator Spicer) has stated that acceptance of the proposed amendment would defeat the object of this bill. In effect, he said that if provision were made in this measure for trial by jury its intention would be defeated. I cannot understand the Minister’s reasoning in this connexion. It must be borne in mind that the first requirement is that a person shall be declared. Thereafter, certain things may take place. That is an aspect of the matter that appears to have been lost sight of by some honorable senators.
– Order ! The honorable senator should confine his remarks to the clause.
– With all due respect to the Chair, I am doing so. Provision is made in this measure for the GovernorGeneral to declare a person who is engaged, or is likely to engage, in activities prejudicial to the security and defence of the Commonwealth, or to the execution or maintenance of the Constitution, or of the laws of the Commonwealth, by instrument published in the Gazette. Surely to goodness a person so declared should be entitled to trial by his peers, if he so desires. That is a fundamental right that has existed under British law for many years. It has been suggested that if a juryman disagreed with the remainder of the jury, the effect of this measure would be lost. We should consider whether this bill aims merely to stamp out communism in this country, or is intended to go a long way beyond that objective. In view of some of the statements that have been made by honorable senators opposite, I am inclined to think that the pursuit of communism is not the only motive for this legislation, and that the bill is intended to provide a much larger net for people who may be termed victims. The measure specifically provides that any body of persons, corporate or unincorporate, not being an industrial organization registered under the law of the Commonwealth or a State, may be declared unlawful. But what is the position of an organization that is deregistered under the laws of a State or the Commonwealth? Once that situation arises the organization would be covered by this bill.
– It is punished by de-registration in itself.
– That is no comparison. The position is that the clause intends to bring within its ambit the Communist party and other organizations that may be likely to be considered something other than truly loyal subjects of His Majesty the King. I submit that the moment a union is deregistered, it will come within the scope of the measure. I remind the committee that the vital industries specifically mentioned in the bill are the coal-mining industry, the iron and steel industry, the engineering industry, the building industry, the transport industry, and the power industry.
– And any other industry vital to the defence of Australia.
– What is the intention ‘behind the bill ?
– To deal with Communists.
– I submit that the Opposition has done everything possible to assist the Government to achieve its objective, that is to ban the Communist party and affiliated organizations that can be determined unlawful organizations. This drag-net provision brings in practically all organizations in this country, if necessary, but will a member or an organization whom it is intended to declare be called upon for an explanation before being actually declared? I am more inclined to think that the committee of five will declare citizens of this country on information supplied to it. Under sub-clause (2.). of clause 9 a person whom it is considered is doing something prejudicial to the interests of this country, or something to upset the good government of this country, may be declared. The Government contends that after he is declared he should not have the right to elect to he tried by his peers.
– He has to be proved to be a Communist.
– He can be declared so long as he is doing something to the detriment of the country. That is where the Government has gone beyond the line.
– It has defined a Communist.
– Although the Opposition is doing everything possible to assist the Government to accomplish its purpose, honorable senators opposite are going to extreme limits by insisting that the committee to be appointed shall be able to declare a person on information supplied to it by any person, even though that person may have a grudge against the person complained about. We want clean laws in this country. If citizens break those laws it is our duty to see that they are brought to book, but not by nefarious means. When they are brought to book, they have a right to trial by jury, if they so desire. The Attorney-
General has advanced the extraordinary contention that the ramifications of this bill will go overboard if the right of trial by jury is to be accorded to such persons. If acceptance of the proposed amendment would wreck the bill, it could be contended equally that any other Opposition amendment would wreck the measure. A really genuine effort to stamp out communism in this country is still being made by the Australian Labour party.
– With the indulgence of the committee, I should like to address a few remarks to the amendment that has been moved by the Leader of the Opposition (Senator Ashley). I shall first make my own position quite clear in relation to trial by jury. I think that it is one of the finest features in the English system of law. In that connexion, I should like to dissociate myself from certain remarks that were made by an honorable senator on this side of the chamber. I say that purposely, in view of the views that I intend to express. I do not propose to reiterate the various statements that have been made by honorable senators on this side of the chamber in support of doing away with trial by jury in this instance. The Opposition has contended that if trial by jury is not extended to the people in question, there will be created a police state. I submit that a court-martial in one of the services runs completely parallel with such a case. If a civilian were detected endeavouring to seduce a member of the Royal Australian Navy, he would be tried by court-martial without jury, in the same way as we suggest that a person suspected of treason or seditious activities in this country should be tried by people who know all about it, not by a body of men to whom the matter w.as strange, and who could not possibly understand the implications of the statement of the prosecuting attorney. I do not propose to relate’ all the details of what happens when a man goes before a court-martial, but I remind the committee that this type of no-jury court has already been in existence for many years. It is still considered one of the fairest courts under British law. A civilian detected trying to seduce a member of the naval forces towards treasonable acts is tried by a court-martial consisting of five senior officers of the naval service. I submit that that is completely analogous to the proposed method of dealing with Communists, which does not involve a departure from British justice.
– I suggest to Senator Kendall that if a member of the naval forces were charged, he would be dealt with by a court-martial, comprising members of the service to which he belonged. The position is not analogous to the declaring of Communists. The amendment moved by the Leader of the Opposition (Senator Ashley) is intended to preserve to citizens one of their rights that would be taken away by the bill, and that is the right to be tried by a jury of one’s equals. The bill proposes to ban certain persons because they belong to a particular organization and to remove an individual from his job and subject him to certain additional penalties if his activities are considered to be opposed to the national interest. “What the Labour party has attempted to do throughout the protracted debate that has taken place on this measure is to protect individuals and organizations so that they will be able to exercise at least some of their rights under ordinary British law. The proposal that a person or an organization may be proscribed by the Government savours of persecution if, in fact, it is not actual persecution. Because of that suggestion it is necessary to include in the bill some safeguard of the kind proposed by the Leader of the Opposition. Down the ages controversy has raged around attempts lo deny individuals who have been accused of offences the right to place their f-a.se fairly before some independent tribunal. Lord Macaulay, the eminent historian and philosopher, wrote an essay on Hallam’s Constitutional History of England, in the course of which he stated -
To punish a man because he has committed a crime, is not persecution. To punish a man, because we infer from the nature of some doctrine which he holds, or from the conduct of other persons who hold the same doctrines with him, that he will commit a crime, is persecution, and is, in every case, foolish and wicked.
The application of those observations to the measure we are discussing is obvious. The Government proposes, as some kind of compromise, that the power to “ declare “ an organization or an individual shall be confided to a committee of five individuals, who will have the right arbitrarily to decide whether a man has done wrong or may do wrong. Such a committee can be, and has been, not unjustly described as a “ star chamber “. The insertion in the bill of the safeguard proposed by the Leader of the Opposition will prevent the extraordinary provisions of this measure from being used to persecute individuals.
Senator “Wood, in the course of his remarks, very severely criticized the ageold British system of trial by jury, and over the years many similar criticisms of that system have been uttered. Of course, the real difficulty is that whilst many eminent persons are opposed to trial by jury, they have not the courage to come into the open and say so. The Government has been exceedingly careful to refrain from appearing to condemn trial by jury, and has endeavoured to dodge the issue by asserting that no trial will take place when an individual or an organization is declared because, technically, no offence has been committed. That is a mere subterfuge. I remind honorable senators of the words of Sir William Blackstone in his famous Commentaries, in the course of which he stated - . . the founders of the English laws have with excellent forecast contrived . . . that the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours, indifferently chosen, and superior to all suspicion.
That heritage has been handed down to us, and it should not lightly be cast aside. The Attorney-General has consistently contended throughout the debate that no crime will have been committed by a person who will be declared. As I have already pointed out, such a person may not have committed a crime in the strict sense of that word, but he will certainly he subjected to very serious penalties. The consequences to an organization or to an individual declared under the measure will be very grave, but I am now principally concerned with the position of the individual. A man who is declared and loses his job in the Public Service or in an industrial organization will have no right to full legal redress. It follows, therefore, that we should at least extend to him the benefit of a fair trial before a judge or a judge and jury. Common justice demands that some such latitude should be extended to an accused person. No more terrible accusation could be made against an individual than that he is a traitor, or a potential traitor, to his country. I remind honorable senators that such an accusation may be based on the mere fact that the individual has advocated perhaps just one of the many doctrines advocated by Marx, Engels or Lenin.
– That means that he is a Communist.
– But even a Communist is entitled to prove that he is not the danger to the community that the Government alleges he is.
– We give him that right under the bill, because he is permitted to appeal to a court.
– But the right of appeal is a very limited one.
– If he is a Communist he is a traitor.
– Let the Government’s representatives go into the box and prove he is a traitor. Obviously, it is not sufficient for some member of the Government with a similar outlook to that of the honorable senator to have the right to brand an individual as a menace to society. The seriousness of the consequences of branding a man demand that he shall not be declared on the mere say-so of some member of the Government.
– Communism is a traitorous doctrine.
– If the Attorney-General (.Senator Spicer) believes that to be so does he not consider that he could easily satisfy a judge or a judge and jury that the individual concerned is a danger to the community? Surely, if the Minister is so confident of the fact that any individual who is a Communist is necessarily a traitor, he should have no difficulty in establishing that fact to the satisfaction of an independent tribunal. But he is not prepared to do that. We must not forget all sense of justice in dealing with this matter.
After all, the Opposition is merely asking that an accused person shall have the right to be tried before a judge or before a judge and jury.
– I do not suppose that my contribution to the debate will have any effect on the minds of members of the Opposition, but I suggest that the clause under discussion has been ignored by many honorable senators who have taken part in the debate, and we have been treated to a dissertation on a variety of topics that have nothing to do with the bill. Senator O’Flaherty, who has just spoken, complained that certain people will be “ branded “ under this legislation. I remind honorable senators of the words of the preamble to the bill, to which the Opposition agreed, which set out ample justification for “ branding “ a Communist. Having agreed to the preamble, the Opposition is now attempting to find fault with the fact that a penalty will be imposed upon an individual who is a member of the Communist party. I repeat that by accepting the preamble without demur they have already agreed that a member of the Communist party is an undesirable person.
I join with honorable senators on both sides of the chamber in supporting the traditional right of a. British subject who is accused of a criminal offence to be tried by a jury. However, if one lost all sense of realism and forgot the times and conditions in which we are living he might be lulled into the belief that the Government is seeking arbitrarily and capriciously to withdraw from the people some ancient, constitutional right. That is the attitude which members of the Opposition have induced in themselves and which they are seeking to instil into the community. The fact is that we are not living in normal times, and the situation calls for uncommon action. That is the justification for rejecting the proposal put forward by the Leader of the Opposition (Senator Ashley). We know that the enactment of that proposal would have the effect of delaying and hindering the carrying out of the objectives of the bill. Whether the amendment has been moved with that intention I do not know. In agreeing to the adoption of the preamble to the bill without alteration, the Opposition has indicated that it agrees that the problem which confronts us is not a normal one and that its solution requires uncommon legislation and complete confidence in the integrity of “the judiciary. Since the duty of the judiciary under this bill is to protect the rights of individual members of the community, I submit that the appeal provisions already contained in the bill are all that are desirable or necessary.
We are told that a declared individual will be branded for life. What brand will he carry? He will be branded only to the degree that he has ex-pressed his belief in something that has been declared to be illegal. He will know that when he expresses his belief. Otherwise, he will have an opportunity to satisfy a reasonable court that he does not hold the views that have been attributed to him. Therefore, he will not have anything to fear. I have been connected with industry for the greater part of my life, and I realize that there are degrees of communism. There are people who only think that they are Communists; there are people who would like to be Communists, but are not game, and there are others who are genuine Communists, but their number is not great. However, they are sufficiently numerous to influence dupes to do their bidding, which, in turn, is the bidding of a foreign power whose aim is to disrupt industry at a time when progress is most desirable. Honorable senators opposite have expressed abhorrence at the possible fate of individuals who will be declared because they are Communists, but no such protests are made about the gaoling of any other individual for a breach of the law. Declared persons will not necessarily be sent to gaol. While supporting the general principles of this bill, the Opposition has felt obliged to put on a “ show “ in this chamber with the object of convincing people that it is concerned only with giving every one a “fair go”. That is my assesment of the debate that has taken place on this proposed new clause. Whether by accident or design, the only effect of the Opposition’s attitude to this measure will be to delay the imple- menting of the essential principles of the bill.
– I do not know who it was that first said, “Lord protect me from my friends “, but no one ever needed such protection more than did the AttorneyGeneral (Senator Spicer) this ‘afternoon. Two amazing statements have been made from the Government side of the chamber. Earlier, I was inclined to the view that it would have been as well if this debate had concluded last night, but now I am glad that it did not, mainly because of the two statements to which I have referred. One was made by Senator Wood, who said that he did not believe in trial by jury. The other came from Senator Kendall, who said that offenders against the provisions of this measure should be courtmartialled. Those statements show conclusively the danger of leaving the liberty of any citizen, be he a Communist or not, in the hands of a government such as this. I do not think that I have misrepresented the honorable senators. However, I agree that the court-martialling of declared persons would be preferable to the form, of treatment that they are to receive under this measure. I take it that at a court-martial, the accused person is present. He will not be present when the evidence upon which he is to be declared under this measure is considered by the five men. No provision is made for any cross-examination of the informer, and no penalty is provided for an inf ormer who acts maliciously. I do not know much about courts-martial, but I assume that an offender is formally charged with an offence, and is permitted the aid of counsel.
– Senator Kendall said that trial by court-martial was fair, and I am sure the honorable senator will agree with that.
– I agree it is fairer than the method provided under this bill because the accused person is present; he confronts his accuser, and has a right to question him. As I have said, a person who is to be declared will not be present when the evidence against him is given. He will not even know who has informed against him.
The Attorney-General is very good over 100 yards, but not so good in the marathon. The farther he goes the worse he gets. He reminds me of the Italian marathon runner who collapsed before he had completed the course. He was carried over the line, but was disqualified. The Attorney-General said that innocent people had nothing to fear under this legislation. That is no justification for the measure. The honorable senator might as well argue that every person in the Commonwealth should be finger-printed because no innocent person would have anything to fear, or that every house should be entered to search for documents merely because no innocent person would have anything to fear. I am not very much concerned about the law in this connexion, but, I am concerned with the fate of principles of British justice that have been adhered to for the last 600 years. One of those is the right of trial by jury. The Attorney-General said, “¥e are going to govern “. Of course he is, but it is impudence and audacity to suggest that the governing of this country necessitates the setting aside of fundamental principles of British law. Senator Simmonds said that we had no right to criticize this measure as we had agreed to the principle of it. That is not quite correct, because under this bill declared persons have to be more than Communists. Clause 9 states -
Where the Governor-General is satisfied that a person is a person to whom this section applies and that that, person is engaged, or is likely to engage, in activities prejudicial to the security and defence of the Commonwealth . . .
He may not be a Communist at all. Senator Cameron spoke of the fight against the divine right of kings. We are to have a. divine right of five people, who will listen to informers, or accept documents which indicate that a certain person is a Communist or is acting prejudicially to the security of the nation. In the face of that provision, for the Government to say that it believes in freedom is ridiculous. The Government cannot have it both ways. Either we have fought for something or we have fought for nothing. Let us get out of our heads the idea that we are dealing only with Communists. A British subject, whether he is a Communist or not, has a right to a trial by jury on a serious charge. Honorable senators opposite have shifted their ground continually. Every time the Minister for Trade and Customs (Senator O’sullivan) speaks he reminds me of the pea-and-thimble man who says, “There it is; there it isn’t”. In one breath he admitted that the Labour party was opposed to the Communists, but in the next breath he said that he was satisfied from the way we on this side of the chamber were behaving in regard to this bill, that we were working with the Communists. Which is it to be? I say again that if the Government wanted to assist the Communists it could not have done anything better than to frame a bill of this kind, placing the onus of proof on accused persons, and denying them the right of trial by jury. Tens of thousands of people in this country who would not care if all the Communists were hanged tomorrow are most concerned with their own individual rights. Their view is that if this can happen to the Communists today, it can happen to them to-morrow. History shows that once the principles of law are set aside it is most difficult to restore them. The Communists can be fought only by isolating them. If the Government wants to declare the Communist party illegal, let it do so, but it should stop there. This legislation plays right into their hands. When a Communist approaches a trade union member ho does not say, “ We want you to assist the Communist party “. He says, “ You are in favour of a shorter working week. That is what we are striving for “. That will be the attitude of the Com.munists under this legislation. The president of the Australian Labour party, Mr; Anderson, said that a demonstration against the bill was necessary because it linked the fate of the Communist party with trial by jury and the £10 a week basic wage application. I dislike the bill from beginning to end, but I shall abide by the decision of my party. If honorable senators opposite knew what they were up against they would never have introduced this bill which already has been amended 40 times.
– I rise to order. I submit that the honorable senator’s remarks have no relation to the clause now before the committee.
– All right; I sympathize with the Attorney-General. I maintain, however, that any member of this chamber who does not believe in trial by jury should resign. I remind Senator Wood that he was elected to this chamber not by five men, but by a jury - the people of Queensland. If he does not believe in democratic processes, he has no right to be here.
– That is a different matter entirely.
– It is not. I do not know how many people there are in Queensland, but probably there would be about 1,000,000. If the honorable senator has no faith in the common man, why is he here? Apparently he believes in dictatorships. He believes that five men are more able than a jury to judge the guilt of a declared person. He does not believe in trial by jury in any circumstances. That is the point I am making. It is a matter of no trial by jury for the Communists to-day, no trial by jury for the trade unionists to-morrow, and no trial by jury for somebody else the next day. The jury system, with all its faults, has proved better than any other system. I ask honorable senators to forget that this is a question of communism or neocommunism. Is British democracy so weak that it has to throw aside all the traditions of Magna Charta to get a few people who are, or may be, Communists? The Government knows Healy and Roach. There is no question of onus of proof or trial by jury about them. They admit that they are Communists. Australian democracy is supposed to be the strongest in the world and I cannot believe that it is necessary to prejudice the liberty of8,000,000 people to get at two or three would-be Communists. It has been suggested that the Government will divulge the secrets of the country if it has to supply evidence. In the next breath, Government supporters say that if a person who is declared swears that he is not a Communist, the Government is prepared to submit evidence. The Government cannot have it both ways. I understand that the Government says the processes of law cannot be utilized because the country is in such a terrific state that it is practically at war. My own opinion is that the proposal is unconstitutional because the Government is assuming that the country is at war and the High Court has ruled on the price-fixing legislation that it is not at war. Suppose the country were at war and a government claimed its security was at stake. If Jones were declared and was prepared to swear that he was not a Communist, the Government would then take out from the archives the reports of its pimps.
– He would be crossexamined first.
– The AttorneyGeneral is going to make it worse. After the Labour party had pushed the Government from pillar to post, it was agreed that if a man was declared and went into the witness-box to swear that he was not a Communist, the onus would pass to the Crown.
– Order! The honorable senator’s time has expired.
Question put -
That the new clause proposed to be inserted (Senator Ashley’s amendment), be inserted.
The committee divided. (The Chairman -Senator T. M. Nicholls.)
AYES: 31
NOES: 21
Majority . . 10
AYES
NOES
Question so resolved in the affirmative.
New clause agreed to.
Clause 25 (Regulations).
– I invite the Attorney-General (Senator Spicer) to tell the committee what the Government proposes to do with declared Communists. What is to he their place in society once they are declared? Will a declaration be recorded in the files of the employment service? Will the Communists be allowed to keep their positions in industrial unions if they are not holding official positions? Will public servants who are declared be entitled to superannuation benefits? Can they collect unemployment benefits when they are deprived of their employment? Has any provision been made for gaols or political prison camps or any other means of handling those people? I should like to know how the Government intends to deal with this problem once the bill’ becomes law.
– I confess to some mystification about the question because the bill indicates quite clearly what is going to happen to people who are declared. I imagine that by this time the honorable senator has read the bill. [ realize that the Opposition has now destroyed the bill and, that being so, probably the committee is discussing merely hypothetical questions, but I shall recapitulate the results that follow a declaration. They are set out in the bill plainly, and there are three of them. The first is that a person who is declared cannot remain in the Public Service. He can follow any other employment but not that. Secondly, he may not be an officer of certain trade unions that are declared by the Governor-General, a substantial number of whose members are engaged in vital industries. Thirdly, the Commonwealth cannot enter into a contract with a person who is a declared person for the supply of goods or services, but he can still enter into contracts with other people if he can get people to carry on business with him. Incapacity from employment in the Commonwealth is not confined strictly to employment in the Commonwealth Public Service, but extends to employment with an authority of the Commonwealth. Those are the consequences which will follow a declaration. There is no need for concentration camps. The Government is not contemplating putting those people into gaols. Declaration does not constitute a crime. It does not call for the imposition of a penalty.
– How can they get, food ?
– In the same way as other people do - by earning their living and paying for their food themselves. There are plenty of known Communists at present who appear to me to be able to enjoy a higher standard of living than do some members of this Committee. I do not think that we need shed any tears over the lot of those gentlemen.
– I should like to know what is in the mind of the Government regarding the treatment of persons declared under thi* legislation. They will still have to eat, or does the Government propose to let them starve? How will the Government deal with the social problem that will arise after the declaration of persons under this legislation? What will be the position of public servants who are declared? They will be removed from their positions, and will lose their means of livelihood. Will their superannuation rights be preserved? Will they be able to use the Commonwealth Employment Service? Will a record of the fact that they were declared be kept in the employment office, and the information passed on to prospective employers? Will declared persons, in short, become social pariahs?
– The superannuation rights of persons who lose their employment in the Public Service as the result of being declared under this legislation are dealt with by sub-clause (5.) of clause 11, which states -
A person whose office so becomes vacant, or who ceases to bc so employed, shall, for the purpose of the determination of his rights in respect of superannuation or other retirement benefit, be deemed to have resigned.
Thus, the person who loses his employment in the Public Service will be in the same position as the person who retires from it. He will be entitled to collect the money he has paid into the Superannuation Fund, plus some allowance for interest. For the rest, Senator O’Byrne has drawn a most exaggerated picture. The Government does not intend to establish benevolent asylums for the benefit of persons declared under this legislation.
Clause agreed to.
New clause 26.
– I move -
That the following new clause be added: - “ 26. Where the Governor-General is satisfied that the continuance in operation of this Act is no longer necessary either for the security and defence of Australia or for the execution and maintenance of the Constitution and of the laws of the Commonwealth, the GovernorGeneral shall make a Proclamation accordingly and thereupon this Act shall be deemed to have been repealed.”.
The Government has stated all along that this is intended to he emergency legislation to deal with a particular situation that contains great danger for the community. We do not desire that the legislation shall remain in force any longer than is necessary to meet the circumstances. Once the Governor-General reaches the conclusion that those circumstances no longer exist, it will become his duty under this provision to issue a proclamation, and then the act will cease to operate.
– The Opposition supports the amendment for the reasons mentioned by the Attorney-General (Senator Spicer). It will give the measure the standing of emergency legislation only, which can be reviewed at any time. Now that the amendments put forward by the Labour party have removed the objections we had to the bill, we recognize that the amendment now before the committee does something to sustain the validity of the measure. As I said before, the validity of a measure which places so much reliance on the defence power at a time so far removed from the period of hostilities during the last war, needs all the support it can get. If the validity of this legislation is attacked, the High Court will be more disposed to uphold it if the legislation is obviously intended to meet an emergency. Although I say that, I still reserve my doubt that the High Court will uphold the validity of the legislation under the defence power.
New clause agreed to.
Postponed clause 3 - “ the appropriate court “ means -
Upon which Senator McKenna had moved by way of amendment -
That the word “majority” be left out with a view to insert in lieu thereof the words “ substantial number “.
– When consideration of this clause was postponed, I gave an undertaking that I would not re-open other definitions, and that I would ask other members of the party not to do so, either. The point in dispute is whether the words in the definition should be “ a majority of members “ or a “ substantial number of members “ or “ the greatest number of members “, the last being the compromise suggestion of the AttorneyGeneral (Senator Spicer). The Opposition has considered the suggested compromise, and cannot accept it. We cannot agree that it should he a condition precedent to the exercise of jurisdiction by a court that the whole of the machinery of an organization should be laid bare, and argued before the court so as to satisfy it that the greatest number of members of the organization are resident in a State in which the court has jurisdiction.
– I am unable to accept the amendment. The insertion of the word’s “ the greatest number “ could not result in injustice to any organization. The organization could always approach the court in the State where it had its principal office, but if it could establish that the greatest number of its members were in another State, it could approach the Supreme Court in that State. If the words “ substantial number “ are inserted in the definition, it would be possible for six separate applications to be before six separate State courts at the same time.
– The matter is not of great importance either way, but I direct attention to the fact that the term “ substantial number “ is the very term chosen by the legal draftsmen for use in sub-clause (3.) of clause 10, which reads -
Where the Governor-General is satisfied that a substantial number of the members of an industrial organization are engaged in a vital industry …
The court would have no greater or less difficulty in deciding what was a “ substantial number “ than would the Cabinet have in deciding the issue under subsection (3.) of clause 10. It mightbe important for an organization to bring an application in one State rather than in another. As for the suggestion that six separate applications might be brought either simultaneously or one after the other in six separate States, I point out that there can be ultimately only one effective hearing, so that no practical difficulty could arise. The matter between the Commonwealth and the organization having been resolved by one State court, that would he the end of the matter.
– Suppose the hearings were taking place simultaneously?
– I cannot see how that could happen. The Commonwealth would be a party to every application, and the Attorney-General would have cognizance of what was going on. His counsel would explain the situation to the court, which would ask the parties to make up their minds which court they wanted to hear the application.
– Suppose the court did not do that?
– I have known courts to compete quite seriously with one another.
– As soon as one court made a pronouncement on the appli cation, the matter would become res judicata - a matter decided - and the proceedings before the other courts would wither away. I regret that the Government and the Opposition are unable to see eye to eye on a relatively unimportant procedural matter such as this. There is a point of principle involved. There are many loosely knit organizations without any kind of principal office. The amendment is designed to ensure access by those organizations to the appropriate State courts. We press the amendment for that reason, and also because we do not consider it to be fair that the whole of the organization of a body should be laid bare to a court as a condition precedent to a hearing.
Amendment agreed to.
Clause further consequentially amended, and, as amended, agreed to.
Preamble.
– When all the amendments to a bill have been disposed of and the committee comes to the recitals in the preamble, it is considered normally that enough has been said. However, the recitals in the preamble to this bill are most unusual, and I am impelled to make some comments upon them because of statements that have emanated from Government supporters. From time to time in this debate they have stated that the recitals are either true or not true; that if they are true, all of the provisions of the bill are necessary and desirable ; and that, in those circumstances, the Opposition has no reasonable ground for opposing or even seeking to modify them . That statement over-simplifies the position to an extraordinary degree. As it has been made, I propose to examine the recitals.
The first three recitals merely establish the constitutional base for the measure, and I come at once to the recitals on page 2 of the bill. Paraphrasing them, the first alleges against the Australian Communist party revolutionary activities. That, plainly, is a crime under the existing law of this country. The second alleges against the Australian Communist party that it is concerned with the overthrow of established government by force.
That, too, is an offence against the Crimes Act. The next recital makes the most serious allegations and, in effect, alleges against the Australian Communist party that it is guilty of espionage, sabotage and treason. Those are three of the gravest crimes that can be alleged against anybody. All of them are offences against the Crimes Act. They carry the heaviest penalties, including, in the case of treason, the death penalty. . That shows how seriously those crimes are regarded under the existing law.
The next two recitals, bracketed together - again I paraphrase - allege against the Australian Communist party that it is concerned with the disruption of work and production in certain vital industries. Apart from the fact that the Commonwealth may, under the Crimes Act, declare a state of emergency if there is a disruption of interstate trade, the disruption of work and production is not an offence against the Crimes Act. Unquestionably it could be made a crime, but, despite the undertaking given by the present Government parties to the people at the last general election that, if they were returned, the existing laws would be reviewed and strengthened, no action of that kind has been taken.
The Attorney-General (Senator Spicer) and other members of the Government claim that the recitals are true. I want to examine that statement.
– ‘Does the honorable senator believe them to be true?
– I believe that they are substantially true. I want to know exactly what the Government has in mind. Does it mean that it has merely a strong belief that the recitals are true, such as honorable senators on this side of the chamber have; or does it mean that they are demonstrably true? Are there facts in the possession of the Government that justify serious allegations of that nature? I undertake not to embarrass the Government by asking it to state in this chamber the facts upon which it relies. I shall make it very easy for the Government to state its position. If there are facts that justify it accusing the Australian Com munist party of espionage, sabotage and treason-
– Has the honorable senator not heard what has happened in Canada ?
– The AttorneyGeneral ought to stick to his own recitals.
– I am sticking to them.
– The recitals refer to the Australian Communist party. I am not concerned with what has happened in Canada. The allegation in this bill is directed against the Australian Communist party, and that is the allegation that I am considering.
– The preamble states that the Australian Communist party is an integral part of the world Communist revolutionary movement.
– Has Senator McKenna heard of Dr. Kaiser, in his own department?
– I inform the Minister for Fuel, Shipping and Trans-‘ port (Senator McLeay) that I have no department. Let me make my point. When I have concluded, the AttorneyGeneral can make as many points as he likes to make.
– It is not a bad idea to avoid misrepresentation.
– Does the Attorney-General suggest that the recitals do not allege treason, espionage and sabotage against the Australian Communist party?
– Let the honorable senator read the recitals.
– I have asked the Attorney-General a simple question. If he does not reply to it directly, I must let him make his own case. If he will not say that what is alleged in the recitals is demonstrably true - and I am not pressing him for the facts - I am forced to the conclusion that it is only the Government’s opinion, surmise or assessment of the situation. It is either based upon facts or it is not based upon facts.
– The Labour party is assenting to it.
– The position of members of the Labour party is that we believe these things to be substantially true. Do I need to point out to honorable senators that there is a vast difference between ourbeliefs and what we can establish? There is a vast difference between acting upon suspicion and acting upon facts that are plainly and clearly proved or capable of proof.
– There is a vast difference between the views held by the Labour party now and in the past.
– There has been no alteration of the Labour party’s view of this matter. Some individuals may speak out of consonance with the party’s view, but that happens also in the Government parties. It has happened in this chamber to-day. I say for the benefit of honorable senators opposite that it takes a lot of courage for a member of any political party to express a view that diverges from the majority view of the party. However one may deplore it from a party viewpoint, one must acknowledge the courage and strongmindedness of a man who, in pursuing that course, endangers his personal position.
– May it not be a question of obstinacy plus stupidity?
– I say to the Minister who has just interjected that I do not propose to use terms of abuse as he does. Very often he mistakes abuse and epithets for argument.I am concerned with an exchange of ideas and not with an exchange of epithets.
If the Attorney-General cannot say that these recitals are demonstrably true, then he is asking the Parliament to join with the Government in stating as a fact something that the Government merely believes or surmises to be the case. That is asking a lot of the Parliament. If any one of those allegations is demonstrably true, it is a very craven government that, knowing and being able to prove that there are in this country espionage, treason, sabotage and revolutionary activities, does not take the most desperate action. The Australian Communist party or any other organization is simply a name. It can perform acts only through individuals. Some members of the Australian Communist party must, in the view of the Government, have committed acts of treason, sabotage and espionage. If the Government has in its possession any evidence relating to those acts, it will be false to its duty if it does not prosecute the individuals. The Government suggests that traitors, spies and saboteurs should be allowed to run loose in the community as long as they are not employed in the Public Service or as officials of trade unions.
– The Labour party let them run loose for a long time.
– When the Labour party was in power any Communist, any member of the Liberal party, or any other individual who committed a subversive act in respect of which we had any evidence was prosecuted successfully in the courts of this land, according to the ordinary processes of law, before a jury, and with the onus of proof on the Crown.
-What about the waterside workers who dictated foreign policy? Were not they saboteurs?
– The AttorneyGeneral is seeking to get away from the case that I am presenting to him. There is a very simple way of testing whether these recitals are demonstrably true. Let the Attorney-General select any one name from the list of Communists that was read by the Prime Minister in the House of Representatives. Let him then shed the privilege that he enjoys in the Parliament, walk outside the Parliament and allege that the person whose name he has selected from the list is a spy, a saboteur or a traitor. If he did that, instantly he would be involved in an action for slander, and would be required to prove the truth of what he said. The Opposition believes that the allegations are substantially true. They are in conformity with our observations and suspicions. They are the things that we have said and the grounds and the reasons for our denying access to the Labour party of Communists or “ fellow travellers “ of Communists. But let the Government say whether those things are true or untrue. If they are true, I say that it is a craven government that will not act. The Government has the whole scope of the Crimes Act available to it. If the
Government claims that they are demonstrably true, the Opposition urges it to get on with its duty and prosecute the persons concerned. The Government should not mislead the Opposition and draw wrong conclusions by oversimplifying the position.
– The people will decide whether they are true or not.
– I regret the need for opening up this aspect of the matter at this stage of the debate, but I am impelled to do so by the remarks of honorable senators during the debate. This was the first appropriate place at which I could deal with it. I do not propose, unless provoked, to speak on this measure again, and I express the hope that, unless my colleagues feel strongly urged otherwise, this measure will go through. I am not eager that there should be any wider discussion. The Government has its reply. I do not want the debate to open out at all, but I draw attention to the time that it has taken the Senate to cover this measure. The bill reached the Senate from the House of Representatives on the 24th May. The Minister delivered his second-reading speech on the 25th May, and the debate was adjourned, as usual, until the 30th May. So that the time taken to deal with this bill in the Senate was the 30th and 31st May, and the 1st, 6th, 7th, 8th, 13th, 14th and 15th June. The second-reading debate occupied six days for 60 senators, and less than three full days have been occupied in the committee stage.
– Order! The honorable senator’s time has expired.
, - It would have been stimulating, even at this stage of the debate, if the Opposition had expressed enthusiasm for even one portion of this measure, which it professes to support, but every item of which honorable senators opposite have chosen to criticize.
– That is our privilege.
– I quite agree that honorable senators opposite are entitled to criticize, but the extraordinary feature of this debate has been the frequent protests that have been made by the Opposi tion. After saying that they enthusiastically supported the measure, in all their speeches honorable senators opposite have directed their remarks against one or other of the proposals contained in the bill. ‘Senator McKenna dealt with some items in the preamble, and I shall comment on his remarks. First he misread some of the statements. They have been very carefully worded. For instance, he read a recital as necessarily involving a claim that the Communist party was, at this moment, engaging in activities which could themselves be described as revolutionary activities. The fourth recital in the preamble to the bill does not say that. We were careful not to say it, for very good reasons. That recital reads -
And Whereas the Australian Communist Party, in accordance with the basic theory of communism, as expounded by Marx and Lenin, engages in activities or operations designed to assist or accelerate the coming of a revolutionary situation, in which the Australian Communist Party, acting as a revolutionary minority, would be able .to seize power and establish a dictatorship of the proletariat:
The whole point of that recital is that some of the activities or operations that are being performed at this moment are not necessarily in themselves revolutionary, but are aimed towards the encouragement and development of a revolutionary situation. It does not follow by any means that the operations at the moment being carried on are of such a character that they could be dealt with effectively under the Crimes Act.
– Does the Attorney-General (Senator Spicer) consider that there is any difference in law between a crime actually completed and committed, and an attempt at a crime?
– The situation is best illustrated in this way: I believe that the Communist party in this country has followed a course of conduct that is deliberately designed to retard the production in Australia of all kinds of things that this community needs.
– The Minister has left the first piece out.
– It is associated with this one. If as a result of pretended industrial action a scarcity occurred in the community, and discontent was caused thereby, that would tend to develop a set of conditions which may bring about a revolutionary situation, but it does not follow that the particular steps being taken at the moment are steps which, in themselves, could be described as of a revol u tion a ry ch aracter .
Opposition senators interjecting,
– I was good enough to listen to Senator McKenna, and although I do not ask to be heard in silence, I ask to be heard. I regret that that was a typical piece of misrepresentation by the honorable senator. The sixth recital in the preamble to the bill reads -
Andwhereas the Australian Communist
Party is an integral part of the world communist revolutionary movement, which, in the King’s dominions and elsewhere, engages in espionage and sabotage and in activities or operations of a treasonable or subversive nature and also engages in activities or operations similar to those, or having an object similar to the object of those, referred to in the last two preceding paragraphs of this preamble:
That does not necessarily contain the allegation that those activities of a treasonable or subversive nature are carried on in Australia by the Australian Communist party. It is a recognition of the fact that that party is part of a world movement, which, in the King’s Dominions - and not very far from Australia, I suggest - is carrying on activities that are very much the concern of the Australian people. If some support for this proposition is required, I find it in the report of Sir Charles Lowe, to which I have already referred.
– His report was not very original.
– It is the result of a year’s investigation by one of the most impartial judges to be found in Australia. Furthermore, because of some comment that has been made about that report, it is a fair thing to say, as Sir Charles Lowe expressly says, that he did not act on the uncorroborated evidence of Mr. Sharpley. The whole of the proceedings were conducted upon the basis that the State of Victoria was making charges against the Communist party, and the royal commissioner required them to be proved. I suggest that a royal commission has never been conducted upon a basis which required a stricter standard of proof than was insisted upon by Sir Charles Lowe in these proceedings. One can pay a great deal of attention to what he has had to say. I shall refer to the summary, not the detailed report, although I acknowledge that in order to get the full sense of the matter, fuller statements in the report itself should be studied. This passage appears in the summary -
Up to 1 943 the Australian Communist Party was the Australian section of the Third (or Communist) International.
– That is nothing new.
– The honorable senator seems to know everything. The passage continues -
Since then there is no evidence to show control from abroad but generally the policy of the Australian Communist Party is in harmony with that of the Communist Party elsewhere.
– Every one knows that.
– If every one knows it, there is nothing wrong with the allegations in the preamble to the bill. As for the other statements in the preamble, I think that I could justify all of them by reference to findings in this report. I should like to go to another source for confirmation of the view that has been expressed by Government senators! - that the Communist party is a part of the world Communist revolutionary movement. I have referred to a judgment by Mr. Justice Jackson of the Supreme Court of the United States of America, which was delivered on the 8th May this year, and is therefore right up to date. Some of the things that he said about the Communist party were -
Congress could rationally conclude that, behind its political party facade, the Communist Party is a conspiratorial and revolutionary junta, organized to reach ends and to use methods which are incompatible with our constitutional system . . . The goal of the Communist Party is to seize powers of government by and for a minority rather than to acquire power through the vote of a free electorate. It seeks not merelya change of administration, or of Congress or reform legislation within the constitutional framework
I suggest that. that observation is peculiarly true in Australia. The judgment continued -
The Communist Party alone among American parties past or present is dominated and controlled by a foreign government . . . It is a satrap party which, to the threat of civil disorder, adds the threat of betrayal into alien hands.
That is the main reason for the introduction of this bill. Later in the judgment this passage appears -
Violent and undemocratic means are the calculated and indispensable methods to attain the Communist Party’s goal. It would be incredible naivete to expect the American branch of this movement to forgo the only methods by which a Communist Party has anywhere come into power.
I suggest that that observation applies equally to Australia. Later in his judgment, Mr. Justice Jackson stated -
The Communist Party has sought to gain this leverage and hold on the American population by acquiring control of the labour movement. All political parties have wooed labour and its leaders. But what Other parties seek is principally the vote of labour. The Communist Party, on the other hand, is mot primarily interested in labour’s vote, for 5t does not expect to win by votes. It strives for control of labour’s coercive power - the strike, the sit-down, the’ slow-down, sabotage, or other means of producing industrial paralysis. Congress has legalized the strike as labour’s weapon for improving its own lot.
I suggest that all that is true in Australia, and has been recognized by the Opposition as being true in Australia. What is true in America is true here. I suggest that if any justification were sought for what appears in the preamble it is provided by the report of Sir Charles
Lowe, and strong confirmation of the allegations made in the preamble is provided by the decision of the Supreme
Court of the United States in the case to which I referred.
– Throughout the debate that has taken place during the last fortnight I have not seen anything so pathetic as the speech that has just been’ delivered by the Attorney-General (Senator Spicer). He is confronted with the position that if the Government has evidence of treason, sabotage, espionage and revolutionary activities, it has a plain duty to prosecute. Let us consider the assertions that he made in his speech, and honorable senators will see how he has changed his ground. His attitude amounted to this: The Communist party is not breaking the law, and it is not engaging in unlawful activities.
– My remarks did not necessarily amount to that.
– The AttorneyGeneral dealt with two of the three recitals in the preamble with which I dealt, but he did not refer at all to one of them. Let us examine that recital, of which I gave a short paraphrase. I suggest that my paraphrase will be completely justified by an examination of the recital itself, which is as follows: -
And Whereas the Australian Communist Party, in accordance with the basic theory of communism, as expounded by Marx and Lenin, engages in activities or operations designed to assist or accelerate the coming of a revolutionary situation, in which the Australian Communist Party, acting as a revolutionary minority, would be able to seize power and establish a dictatorship of the proletariat:
That recital amounts to an allegation of revolutionary activities by members of the Australian Communist party. I state an axiomatic principle of law when I say that there is no difference whatever between the attempt to commit a crime and the actual accomplishment of that crime. If any honorable senator wants proof of that contention he need only refer to the press reports of the trial in New South Wales a few days ago of two notorious criminals, both of whom were convicted and sentenced to death on a charge of shooting with intent to murder. Only one of them actually fired the shot which formed the basis of the charge. The recital in the preamble which I have just read contains an allegation that the Communist party is attempting to engage in revolutionary activities. It is quite obvious that such activities are criminal. Therefore, the pathetic spectacle of the Attorney-General urging that the Communist party was not engaging in unlawful activities-
– I did not say that. I said that the ‘Communist party’s activities do not necessarily involve illegal acts.
– As I understood the Minister, he said that the Communists’ activities in disturbing industrial production and so on were not necessarily unlawful.
– Did not Senator MeKenna himself say that he believed the allegations to be’ substantially true ?
– I did, and I do believe them to be substantially true. However, the Attorney-General, believing that the answer would support his contention, asked whether the Opposition was not prepared to agree that the allegations were demonstrably true. Now he is running for cover, and is endeavouring to assert that in the first recital which I have mentioned we are not accusing the Australian Communist party of doing anything wrong.
– That is not what I said at all. 1 said that the Communists are doing things that are very wrong.
– The plain effect of the argument that the AttorneyGeneral addressed to honorable senators was that the Communists were not necessarily engaging in unlawful activities. As 1 pointed out earlier, he did not deal with one of the recitals to which I referred at all. I shall now read that recital because it contains a clear and definite allegation of criminal activity. It is as follows : -
And Whereas thu Australian Communist Party also engages in activities or operations designed to bring about the overthrow or dislocation of the established system of government of Australia and the attainment of economic, industrial or political ends by force, violence, intimidation or fraudulent practices:
That is an allegation of crime. If that is not a mere statement of belief or surmise, it must be demonstrably true; and if the crime is demonstrably true then the Attorney-General should prosecute. The Minister and his colleagues would not have brought this discussion on themselves had they not challenged the Opposition repeatedly during the last few days with the assertion : “ You approved of the recitals; either they are true or they arc not true-
– Is the honorable senator himself going to vote for the recitals?
– Yes.
– Then why not do so now? ‘
– “We have been misrepresented, and I am taking the opportunity to correct that misrepresentation. If the Government were to insert the words : “ In the opinion of the Government “ after the words : “ and whereas the Australian Communist party “ that would be a more correct representation of the position.
– No, it would not. We are asking the Parliament to accept responsibility, because it is the Parliament not the Government, which wilt enact the legislation.
– Whilst we agree with the Government generally in the allegations that it makes, and whilst we subscribe to the bill in principle, the Government should not attempt to misconstrue our support as an expression of confidence that the allegations are established facts.
I shall deal now with the very poor argument addressed by the AttorneyGeneral to the succeeding recital, which is in these terms -
Asn Whereas the Australian Communist party is an integral part of the world Communist revolutionary movement, which, in the King’s dominions and elsewhere, . . .
Does the Attorney-General ask us tr< believe that the employment of the term “ the King’s dominions and elsewhere ‘’ does not include Australia?
– Of course it does. However, it does not follow that the subversive acts will necessarily be committed in Australia.
– The recital continues -
Honorable senators will note that those words amount to a positive assertion. The Government has not seen fit to employ the term “ might engage in “.
– But the honorable senator believes the recital to be a statement of fact?
– That is so; but I am asking the Government what proof it has of these positive allegations.
– They have been proved in Canada.
– We are talking about Australia, and the AttorneyGeneral runs for cover to Canada. I remind him that we are discussing the Australian Communist party. The recital continues - . . espionage and sabotage and in activities or operations of a treasonable or subversive nature-
Let us be clear about that. The Communists are alleged to be engaging in espionage, sabotage and other treasonable activities. If the Attorney-General has any evidence of such activities he knows what his duty is - he must bring the individuals before a court and charge them. However, he does not propose to do that. He is compelled to agree that he is not in any better position than is the Opposition concerning the proof of these allegations. Whilst members of the Opposition believe all these allegations to be true, or suspect them to be true, the plain fact is that we do not know whether they could be clearly established in law. Once honorable senators realize that fact they will know what they are doing when we vote for the recitals. However, if the Attorney-General imagines that the recitals in their present form are the last word in demonstrable truth we join issue with him.
. -I do not propose to follow Senator McKenna through his perfectly ridiculous argument in this matter, which is based on a dishonest construction
– I rise to order. I take exception to the intemperate language of the Attorney-General (Senator Spicer), and I ask him to withdraw the allegation that I was dishonest in my argument, because it is objectionable to me.
– I withdraw the word “dishonest”. I can only say that Senator McKenna’s capacity for misconstruing plain language is greater than that of any one I have ever met. I merely wish to reply to what he said concerning the second allegation in the preamble, and I suggest that very strong justification for the statements in the preamble is to be found in the report of Sir Charles
Lowe. I shall refer the Senate specifically to some of the findings expressed in the summary of that report. Paragraph 5 of the summary is as follows : -
The aims and objects of the Communist party in Victoria do not differ from those of the Communist party in other parts of Australia. The aims and objects are -
To establish the dictatorship of the proletariat.
To introduce socialism by expropriating the present owners of the means of production and distribution and the great landlords, and
Ultimately to introduce Communism. This overthrow will be achieved at the earliest practicable moment.
Paragraph 10 of the summary states -
The Communist party is prepared to use any means to achieve what it thinks to be a desirable object, so long as it regards the means as fitting and the result as not on the whole disadvantageous.
– Why has the Hollway Government not charged the Communists with conspiracy?
– We may not have heard the last of the matter yet. The summary further states -
The Australian Communist party strives -
The means and stages by which the Communist party aims to achieve its objective are: -
Paragraph 28 states - 28.The Communist party seeks to overthrow representative and democratic institutionsas we know them, when a revolutionary situation arrives. In the meantime it is willing to make use of these institution’s in order to further its own aims.
Later, the summary proceeds -
Those are all the findings of Sir Charles Lowe and I suggest that they provide ample justification for what appears in the second recital in the preamble to this measure; but still, apparently, the procedure that hasbeen followed throughout this debate must be continued. The Labour party protests that it supports the bill. It wants the bill to be effective, but every line of the measure is criticized, and I have not heard one speech from the Opposition that was a really first-class commendation of any single portion of the bill.
– When this bill was introduced, many people thought that the Government was really sincere. Ostensibly, the purpose of the bill was to ban the Communist party. The Government claimed that the measure was urgent in the interests of the defence of this country. The Opposition asked the Government repeatedly to explain the urgency of the measure, and to show its association with defence matters. The only reply was that the bill was connected with the “ cold war “. We were informed originally that the bill would be passed without amendments. I am convinced, after listening to this debate, that honorable senators opposite have put up the greatest sham fight in our history. Why have they done that? They did it because the bill is outrageous and is contrary to the rule of law as we know it. The Government knew that the Australian people would not stand for it. The Government has been forced to amend the hill to such an extent that it is now unrecognizable. The bill was “ guillotined “ through the House of Representatives. When it reached this chamber we were informed that no amendments would be allowed, but in spite of the objections of honorable senators opposite, the Opposition decided to bring the bill into conformity with the rule of law. Because that has been done, we are now informed that the bill will be ineffective. The bill is a complete sham, be- . cause, if what is stated in its preamble is true, action could have been taken under the infamous Crimes Act. The fourth paragraph of the preamble to the bill states -
And Whereas the Australian Communist Party, in accordance with the basic theory of communism, as expounded by Marx and Lenin, engages in activities or operations designed to assist or accelerate the coming of a revolutionary situation, in which the Australian Communist Party, acting as a revolutionary minority, would be able to seize power and establish a dictatorship of the proletariat:
Either that is true or it is untrue. If it is true, why is new legislation necessary? In section 30 (a) of the Crimes Act we find almost the exact wording of the fourth paragraph of the preamble. That section reads - (1.) The following are hereby declared to be unlawful associations, namely: -
Any body of persons, incorporated or unincorporated, which by its constitution or propaganda or otherwise advocates or encourages -
The fifth paragraph of the preamble to this bill states -
And Whereas the Australian Communist party also engages in activities or operations designed to bring about the overthrow or dislocation of the established system of government of Australia and the attainment of economic, industrial or political ends by force, violence, intimidation or fraudulent practices.
That wording is an almost exact repetition of section 30 (c) of the Crimes Act which states -
Any person who by speech or writing advocates or encourages -
the overthrow of the Constitution of the Commonwealth by revolution or sa botage ;
) the overthrow by force or violence of the established government of the Commonwealth or of a State or of any other civilized country or of organized government; or
the destruction or injury of property of the Commonwealth or of property used in trade or commerce with other countries or among the States.
The reason no action was taken under the Crimes Act is that proof was required. Why was this measure introduced? It was introduced because of certain promises made by the Government parties during the election campaign. The people of Australia were told that if the Communist party were banned, people would get more goods and that certain other things would be done. The Government, believing that it was impossible to do the things that it promised, introduced a bill that was not acceptable to any decentminded person. Because of the Government’s failure to implement its election promises it will blame the Opposition for the failure of the measure and then say the Communists are the cause merely because we have insisted upon the observance of the ordinary rule of law. This bill was only camouflage and the Government is insincere in placing it before members of this Parliament. I agree with Senator Sheehan who said, by interjection, that the more the AttorneyGeneral (Senator Spicer) spoke the more he revealed the Government’s real motive.
. We have again heard Labour’s other voice. Apparently Senator Morrow does not agree with his deputy leader’s statements, because, on a previous occasionhe said, “ This bill stinks to the nostrils of all decent people “. The third recital in the preamble to the bill states -
And Whereas the Australian Communist Party is an integral part of the world communist revolutionary movement, which, in the King’s dominions and elsewhere, engages in espionage and sabotage and in activities or operations of a treasonable or subversive nature and also engages in activities or operations similar to those, or having an object similar to the object of those, referred to in the fast two preceding paragraphs of this preamble:
Senator McKenna said that if there were Communists who, here and now, were engaging in sabotage, it was the duty of the Government to prosecute them; yet, when he was a Minister, he permitted Communists to sabotage a government instrumentality, the Stevedoring Industry Commission. On the honorable senator’s own admission in this chamber, when the Government of which he was a member found that Communists were engaging in sabotage, the commission was abolished. No prosecution was launched. However, these matters are introduced merely to mislead the people, and to divert attention from the main issue. We believe that the Australian Communist party is an integral part of world-wide communism. Do honorable senators opposite believe that?
– Yes.
– In the King’s Dominions, Communists are engaged in treasonable activities. The Canadian spy trials are fresh in our minds, as is the arrest and conviction of Dr. Fuchs in England. We do not want to wait until the damage has been done. We want to anticipate the actions of those people. For overt acts the processes of law already provided will be followed and punishment will be meted out to offenders, but we want, if possible, toprevent sabotage.
Preamble agreed to.
Title agreed to.
Bill reported with amendments; report - by leave - adopted.
Bill - by leave - read a third time.
page 4354
– I move -
That the bill be now read a second time.
This is a bill to alter the provisions of the Constitution relating to the Senate. The need for the alteration springs from the introduction into Senate elections of the system called proportional representation, which came into operation for the first time last year, and the possible effect of which can now be clearly seen. The object of the bill is to avoid a situation in which, after a double dissolution, the Government and the Opposition will be returned in this chamber with equal representation.
In the Senate, a deadlock created by equal representation of the Government and the Opposition is likely to be more complete, and to have more serious consequences than in some legislative chambers. The reason for this is to be found in the rule which is laid down by the Constitution itself, and which the Senate therefore cannot alter, that the President shall have a deliberative vote but not a casting vote, and that when the votes are equal the question shall pass in the negative. This means that with equal numbers of Government and Opposition senators a situation could arise in which the Senate could do no business at all. It can be readily demonstrated that with the present representation of ten members from each State it is probable that in the event of a double dissolution the Government and Opposition parties would be returned in equal numbers to the Senate. It has been estimated that it would be necessary for one side or the other to obtain substantially 55 per cent, of the formal votes cast in a particular State for it to secure the return of more than five members. At the last election, for example, the Government secured sufficient votes to provide it with a majority of 27 in the House of Representatives. If at that election it had been necessary to have ten senators from each .State, representation of the parties in the Senate after the election would have been equal. The Opposition would have been in a position to obstruct the enactment of the Government’s programme of legislation, despite the fact that a double dissolution is intended to overcome that very situation. Thi? result would follow after any double dissolution unless one or other of the parties secured the votes of more than 55 per rent, of those voting in a particular State. This is a situation which calls for remedy. It is ridiculous that constitutional provisions which are designed to solve deadlocks between the Houses should almost inevitably result in the continuance of deadlock. The bill proposes to overcome this difficulty in a very simple way. It provides that upon a double dissolution two elections for the Senate shall be held - one for those who are to fill three-year vacancies and the other for those who are to fill six-year vacancies. In each of these polls five candidates will be returned, and unless one side or the other secures an abnormally large percentage of the votes cast, the winning side will secure three of the vacancies in each case and the losing side, two. The probability of a deadlock will thus be avoided.
It is, of course, possible that even under the new system the Government and Opposition parties could be returned after a double dissolution with equal representation. This would occur if one party secured a majority in three States and the other secured the majority in the remaining States. Such a result can arise under any system of voting and this bill is not directed to the solution of that problem. It is a result unlikely to occur, but this measure is concerned to remove the almost inevitable result which will arise in normal circumstances from the fact that an even number of senators is to be returned from each State under the system of proportional representation.
Some people may think that the Constitution already provides adequately for resolving deadlocks between the houses. The relevant provisions are in section 57 ; hut a glance at that section shows that it deals only with one part of the problem, and not at all with the possibilities which this bill is aimed at. What section 57 provides is that when there is disagreement between the two houses with respect to a proposed law, such as the Communist Party Dissolution Bill 1950, with which the Senate has just dealt, the disagreement will, in certain circumstances, be solved by the dissolution of both houses, that is, a “ double “ dissolution. Following upon a deadlock between the houses as to a particular proposed law, those provisions are designed to secure a decision by the vote of the people. In most cases, at least, that is the constitutional solution intended by the framers of that section. It is true that the possibility of a continuance of the deadlock after a double dissolution in relation to the particular measure which occasioned the dissolution is envisaged by the section, and provision is made in those circumstances in certain events for a joint sitting of the members of both bouses of the legislature after the double dissolution. I emphasize that this provision does nothing to solve the problem of a continuing deadlock after a dissolution, except in relation to the particular measure which was the immediate cause of the deadlock. Therefore, if the Opposition and Government parties are returned in equal numbers to the Senate after the dissolution, the probability of the Government being unable to carry other legislation through the legislature will remain, whatever may be the ultimate fate of the measure with respect to which the dissolution of the Senate was granted.
In addition to lessening the prospects of a continuing deadlock the bill provides for a solution- for another difficulty which arises under the provisions of section 13 of the Constitution as at present enacted. The only provision in that section for the allocation of three-year or six-year vacancies between the senators chosen after a dissolution of the Senate is that the Senate shall divide the senators chosen for each State into two classes. This means, in the absence of agreement, that a majority of the Senate could allocate six-year vacancies to themselves and three-year vacancies to their opponents. The section does not contemplate the possibility that on this issue the Senate may itself be equally divided, and no provision is made for the allocation of vacancies by any other method than the vote of the Senate itself. Two undesirable consequences follow from this. First, if the House is evenly divided and. agreement is impossible, there is no method provided in the Constitution for solving the problem. In other words, section 13 as at present enacted could be rendered completely unworkable in this respect. That is not fantasy. I recollect, and I think the President will recall also, an occasion when a President of this Senate was ohosen as a result of there being an equality of votes.
– That was not because of a deadlock.
– I am merely suggesting that this is not fantasy. I am illustrating how far political warfare can go. At that time, the Liberal party or its predecessor occupied the treasury bench. It had a majority in the Senate of nineteen members to seventeen members of the Labour party. One of the Government supporters was serving overseas with the forces, and, for normal purposes, the Government had a pair. On the day the vote was to take place, another honorable senator on the Government side was sick and could not be present in the chamber when the vote was being taken. As a result, the voting was seventeen on each side in terms of party strength. Honorable senators who were present will remember that the Senate went through the process of having two votes and on each occasion the voting was seventeen all.
– The Government was unlucky in the draw.
– The Opposition would give nothing away. One of the Opposition members would not stay out because one of the Government members was sick. No allowance was made for the man who was in the Middle East. The rules of voting were complied with strictly and if there had not been provision in the Standing Orders for the solution of a deadlock of that nature by pulling the names out of a hat or a box, the deadlock would have continued. I am using that incident merely as an illustration to show that it is not fanciful to suggest that there could be a complete deadlock in the absence of provisions such as are contained in the bill now being introduced to the Senate, because no party would be able to carry a motion to solve the problem. It is true that there are precedents for the method to be adopted for the election to fill vacancies after a double dissolution. It had to be done in 1914 and at the very commencement of the Senate itself. On those occasions a motion was proposed that those senators who got the highest number of votes at the election should take six year terms and those who got the smaller number should take three year terms.
– There is nothing wrong with that.
– 1 agree, but assuming that the Senate was equally divided after a double dissolution and it was proposed on one side and opposed on the other the Senate would be equally divided on that question. The motion would not be carried and therefore there would he no solution of the problem. So I suggest that that in itself provides a strong reason why some solution should be found. The second undesirable consequence which follows from that difficulty is that the Senate allocates the threeyear and six-year seats from the outset-
– The Constitution provides for that.
– I am suggesting that the Constitution should he altered and that the public should make the selection. I shall give another reason why it is desirable. I offer this illustration against myself: Supposing, after a double dissolution, the present Government parties had 31 members in the Senate, and the Labour party had 29, would honorable senators opposite regard it as a satisfactory allocation if the Government parties were to allocate to themselves all the sixyear vacancies, leaving to the Labour party all the three-year vacancies? Having regard to the readiness which the Labour party has displayed recently to secure its position in this chamber in complete disregard of the will of the electors, one might be pardoned for believing that the Labour party, if it had a majority of two in the Senate might be tempted to allocate to itself all the six-year vacancies, even though its political opponents had a majority in the House of Representatives.
– That could not happen.
– Yes, it could. This is a serious matter, and, so far as we are concerned, it is not a political matter. The purpose of the Government in submitting this possible solution of the problem-
– It is not a solution.
– I suggest that it is. Under the system of proportional representation, there is every chance that, after a double dissolution, the parties would be returned to the Senate in even numbers.
– The Government’s scheme would not prevent that.
– It would. I concede that, under any system of voting, it is possible that the two opposing parties could be returned in equal numbers, but this measure is designed to eliminate the probability of that happening after a double dissolution under the present system of proportional representation. It is proposed that, instead of the Senate itself deciding which Senators shall sit for six years and which shall sit for three years, the public shall decide the matter.
– The parties will decide it.
– We say that, ultimately, the public will do so. It is provided in the Constitution that the Senate shall make the allocation as between the parties. That means, in effect, that the allocations are made by a vote of the Senate. On the two occasions when such a situation arose, the Senate decided that the six-year terms should go to those who had polled best at the election, the three-year terms going to the others. However, the party in the Senate which had a majority could just as easily have given itself all the six-year terms, leaving its opponents only the three-year terms, and its decision, which would have become the decision of the Senate, would have been quite legal.
– What would happen if there were a third party?
– I appreciate that there might be complications if there were a third party in the field, but the public tendency manifested during recent elections is to vote for a government party or parties, or for an opposition party or parties. It is unlikely that there will be a departure from that tendency for some years.
– The result might be different under the proportional representation system.
– I admit that under the system of proportional representation there is a greater possibility of small minorities obtaining representation, hut I do not think the possibility is a great one. The tendency of the electors is to ally themselves with one or other of the two groups representing the Government and the Opposition. As I have said, an undesirable consequence of the present system is that a majority party in the Senate could appropriate to itself all the six-year terms, and leave its opponents with the three-year terms, despite the fact that, although possessing a slender majority in the Senate, it represented a minority party in the House of Representatives. The present proposals are designed to overcome that difficulty. The electors will make the allocation by voting for one set of candidates who seek the three-year term, and another set who seek the six-year term. The hill does not seek to confer any advantage on either the Government or the Opposition, as represented in this chamber at the present time. The problems which would arise if the Opposition and the Government were equally represented in theSenate would present themselves to whatever government was in office, and it is obvious that some solution of the difficulty must be found. The absurdity of the existing situation is such that one can only conclude that, when the system of proportional representation was enacted for the Senate, this particular problem was overlooked. Recently, in this chamber, there has been some criticism of those who drafted a particular measure. Apparently, draftsmen on the other side have overlooked some very important possibilities.
– That is a generous interpretation.
– Perhaps it is. It may be demonstrated during the course of the debate on this measure that the interpretation was over-generous. The solution of the problem provided by the present bill is simple and fair, and should commend itself to all members of the Senate.
Debate (on motion by Senator Ashley) adjourned.
page 4358
Bill returned from the House of Representatives with amendments.
In committee (Consideration of House of Representatives’ amendments) :
Clause 3 (Child endowment a general social service and not to effect wages or salaries).
House of Representatives Amendment No. 1. - Leave out the clause.
Clause 4 - (1.) Section ninety-five of the Principal Act is repealed and the following section inserted in its stead: -
95.-
(2.) The rate of endowment shall be Ten shillings a week.
House of Representatives Amendment No. 2. - Leave out proposed sub-section (2.), insert the following proposed sub-sections : - “ ‘ (2.) In the case of an endowee other than an institution, the rate of an endowment shall be-
where the endowee has the custody, care and control of one child only - Five shillings per week; and
) where the endowee has the custody, care and control of two or more children - in respect of the elder or eldest child, Five shillings per week and, in respect of each other child, Ten shillings per week. “ ‘ (2a.) In the case of an endowee being an institution, the rate of the endowment in respect of each child who is an inmate of the institution shall be Ten shillings per week.”.
House of Representatives Amendment No. 3. - After proposed sub-section (3.) insert the following proposed sub-section: - “ ‘ (3a.) Where, by reason of divorce, separation, death of a parent or otherwise, any children who would otherwise be living together as one family or as part of one family are not so living together, endowment may, in the discretion of the Director-General, in respect of each of those children who is in the custody, care and control of a person who has the custody, care and control of no other children, be paid at the rate which would be payable if those children were living together as one family or as part of one family.”.
New clauses -
House of Representatives Amendment No. 4. - After clause 6 insert the following new clauses: - “ 6a. Section one hundred and three of the Principal Act is amended by adding at the end thereof the following sub-section: - (3.) Where, in the case of an endowee (other than an institution) who has been granted endowment in respect of more than one child, the endowment (being at the rate of Five shillings per week) in respect of the elder or eldest of the children in respect of whom endowment is payable ceases, by virtue of this section, to be payable, the rate of the endowment payable in respect of the other child, or the next eldest child, as the case may be, shall thereupon become Five shillings per week.’. “6b. After section one hundred and three of the Principal Act the following sections are inserted : - 1 03 a. Where an endowee (other than an institution) who is in receipt of endowment in respect of a child at the rate of Five shillings per week assumes the custody, care and control of another child who is older than the firstmentioned child, and is granted endowment in respect of that other child, the rate of the endowment payable in respect of that firstmentioned child shall, as from the date from which the endowment in respect of that other child becomes payable, be Ten shillings per week. 103B. Where a person has the custody, care and control of more than one child, and one or more of those children, other than the elder or eldest child, is a child in respect of whom endowment may not be granted, the DirectorGeneral may, if he thinks fit, authorize the payment of endowment in respect of the elder or eldest child at the rate of Ten shillings per week.’.”.
– As the Opposition has agreed to deal with the four amendments together, I move -
That the amendments be agreed to.
If the committee were to agree to the amendments made by the House of Representatives, the bill would be restored to the form in which it was introduced into the Senate.
The endowment of the first child in every family at the rate of 5s. a week is a major part of the policy of the Liberal party and the Australian Country party. It is a proposal that the Liberal party advocated during the general election campaigns of 1946 and 1949. I submit that, in those circumstances, the electors have given the Government a mandate to implement it. This measure is of wide national importance. There are 650,000 Australian families already in receipt of child endowment, which is now paid in respect of all children under sixteen years of age except the first child, and if these amendments are accepted it will be paid to another 450,000 families. The Government’s proposal to pay child endowment in respect of the first child in every family is in conformity with its policy of endeavouring constantly to improve the standard of living in Australia. The Government believes that families with more than one child should have an income exceeding the amount actually earned by the breadwinners. It is not suggested that a payment of 5s. a week will be sufficient to support a child, but it is considered that it will be an appreciable contribution to that end. I remind the committee that the present Prime Minister (Mr. Menzies), in the policy speech that he delivered on behalf of the present Government parties, said that if, as a result of the operation of this measure, the basic wage was computed upon a new formula - the needs of a man and his wife only - the rate of the endowment would be increased from 5s. to 10s. a week.
When the bill was previously before the Senate, two amendments moved by the Opposition were made. The first amendment was designed to increase the rate of endowment payable under the bill from 5s. to 10s. a week. The second amendment was in the nature of an instruction to the Commonwealth Arbitration Court not to take that payment into consideration when assessing the basic wage. I do not propose to canvass all the arguments that were advanced when the measure was debated in this chamber on that occasion. It will doubtless be agreed that there is very little that canbe added to what was said then. The reply of the Government to the Opposition’s proposal that the rate of the endowment should be increased from 5s. to 10s. a week was that it was a strange action by the Opposition, having opposed the payment of the endowment at the rate of 5s. a week, subsequently to seek to double the payment. The view of the Government is that, having submitted to the people a proposal that the endowment should be paid at the rate of 5s. a week, it has a mandate to pay that sum, and no more. Having regard to the rights of beneficiaries under the National Welfare Fund, it believes that, from the viewpoint of financial considerations, it should not at this stage support a proposal that the rate of the endowment should be more than 5s. a week.
With regard to the direction to the Commonwealth Arbitration Court, the reply of the Government, briefly, is that if a payment of 5s. a week would adversely affect the basic wage, the position would be correspondingly worse if the endowment were paid at the rate of 10s. a week. It is the policy of the Government and of the political movements that it represents that, above all, the Commonwealth Arbitration Court should not be fettered or influenced by the government of the day. The legal advice that the Government has received is that the proposed direction to the court would be unconstitutional and might taint the whole measure.
The Government has given consideration to the amendments that were made to the measure when the bill was before the Senate. Having regard to the policy upon which it fought and won the last general election, and to its financial commitments generally, it has come to the conclusion that it will not accept those amendments. The matter now rests with the Opposition, which has a majority in this chamber. The Government is willing and eager to implement the legislation and to accept the responsibility for having introduced it into the Parliament. It hopes that the Senate will accept the amendments of the House of Representatives. If the Senate does not do so, it must accept the responsibility for denying the Government the right to implement the policy upon which it was elected.
– The two issues lie within a comparatively small compass. The net result of the deliberations of the Senate was that two substantial amendments of the bill were made. The measure has now been returned by the House of Representatives in the form in which it was introduced into this chamber. The amendments moved by the Senate have made no impact upon the mind of the Government. The Opposition believes, rightly or wrongly, that its viewpoint has not received due consideration. We feel very strongly that the Government has not appreciated the strength of the case that we presented, and has not seen the real dangers that lie ahead of it.
That being our view, we had intended to propose that there should be a conference between representatives of the House of Representatives and of the Senate at which, in the absence of publicity and of the heat that is often generated in discussions in the publicity of this chamber, the issues could be discussed in a calm, deliberate and objective manner, regard being ha;l to the various viewpoints. Having looked at the Standing Orders of the Senate, I find that it is not possible at this stage to request such a conference. It is possible for the Senate to suspend its Standing Orders and take a short cut to the making of a request for a conference, but it would be useless to adopt that procedure unless the members of the Government in the House of Representatives were prepared to move the suspension of the Standing Orders of that chamber to enable a short cut to be taken. If, UPon consideration, the Government decides this evening that it would be advisable to by-pass the procedure laid down in the Standing Orders of the Senate and of the House of Representatives, the Opposition will be happy to co-operate with it, because it believes firmly that if a really dispassionate discussion takes place some solution may be found. If, in the course of this committee debate, the Government does not express its readiness to accept the Opposition’s suggestion, then, in order to reach our objective, we shall he under an obligation to disagree with the motion moved by the Minister for Social Services (Senator Spooner) and to remit the bill again to the House of Representatives with a request that it further consider the viewpoint and the amendments that the Senate has made.
I shall deal briefly with the two issues involved. The first issue is the amount of the endowment. The Opposition’s objection is based upon the inadequacy of the provision. We traversed that aspect of the matter at very considerable length in this chamber when it was discussed previously. I now come to a matter of vast importance. I refer to the contention of the Opposition that a direction should be given to the Commonwealth Court of Conciliation and Arbitration and certain other arbitral tribunals in Australia that child endowment should not be taken into account when the basic wage was being assessed. In short, the mind of the Opposition is that the Parliament, having provided endowment at certain rates for the first child and other children in every family should be able to ensure that the purpose of such grants is neither defeated nor reduced by the action of some body outside of the Parliament. That is the whole case that the Opposition rests upon. It is perfectly clear in the view of the Opposition that the court will decide whether child endowment is or is not to be taken into account. There are several reasons to support that opinion. When the court adjourned, at the time that this matter was an issue on the hustings at the end of last year, it was very clear that the matter of child endowment impinged directly upon the field that the court itself was considering. In other words the court was concerned with the distribution of the national income. In the expressed view of the court, the allocation of child endowment was part of the same problem. There, alone, is a clear pointer that the court will take child endowment into account. It is a most direct likelihood. That is emphasized by the fact that three State governments have already presented submissions in writing to the court, which will oblige it to determine whether child endowment will be taken into account. Furthermore, employers’ organizations are also asking the court to take child endowment into account. If there was any doubt in the matter I refer the Senate to what transpired in the court only yesterday in Melbourne. The following are portions of a very extensive report in to-day’s issue of the A ge : -
page 4361
New Unit fob Wage Proposed.
A new basic wage family-unit formula was proposed to the Arbitration Court yesterday by employers’ interests in view of the incidence of child endowment assistance. The proposal was outlined byMr. A. P. Aird, one of the counsel representing employers. Mr. Aird submitted that the change in the family-unit basis was justified by the fact that Parliament had “cushioned” the burden of the family responsibility of wage earners. . . . But he did ask that the basic wage should not be increased in view of the system of child endowment and figures showing the average number of dependants of the wage earner.
That should convince the Senate that there are already before the court specific applications by State governments and by the employers of Australia for the court to decide whether child endowment shall be taken into account. In the view of the Opposition, it is certain that the court must resolve its mind upon that point. The Government should take particular notice of this aspect of the matter. The Opposition is anxious to ensure that there shall be no industrial unrest in this country. It is as fully concerned about that matter as is the Government. I point out that if the court decides that the endowment of 5s. a week shall be taken into account, the Government and the Minister, because of the undertaking that was given to the people, and which the Minister reiterated in his second-reading speech, will be under an obligation to raise the amount of endowment for the first child in every family under the age of sixteen years to 10s. a week. It is clear that if the court accepts the principle that child endowment is to be taken into account, and the Government subsequently raises the amount payable to 10s. a week, on the first application by an employers’ organization the court must reduce the basic wage by 5s. If the Parliament approved of the payment of 5s. a week in respect of the first child in every family under the age of sixteen years, and the court decided that that payment must be taken into account, the Government would be under obligation immediately to increase the payment to 10s. a week. Then, having decided in principle that child endowment is to he taken into account, at that point the court must reduce the basic wage by 5s.
– I have not said the court has decided to do so. However, in the interests of the Government, and of maintaining industrial peace, the Opposition feels obliged to warn the Government of the possibilities in this situation. It discharges its obligations when it does so, and I am doing no more than putting a very strong case for the likelihood that the court will take this amount into account.
– It has never done so before.
– It has never had child endowment as an accomplished fact to consider before.
– On what grounds does the honorable senator consider that the court is likely to decide in that way?
– I base my opinion on the fact that in November last, when endowment of the first child was an election issue, the court adjourned the basic wage hearing. Furthermore, several State governments as well as representatives of the employers have requested the court to take child endowment into account: That is one of the issues that the court has been asked to resolve. I do not put it any higher than that. Although I realize that the Govenwent does not want to hear the viewpoint of the Opposition, we consider that there is the strongest likelihood of the court considering those issues, passing judgment upon them, and deciding that child endowment will be taken into account.
– “Where does the honorable senator get that from?
– From the evidence that has been placed before the court.
– For the benefit of the Attorney-General (Senator Spicer), I shall have to repeat the argument that I have already advanced. He may have been absent from the chamber a t the time. I pointed out that in November last, when an extension of child endowment was mooted-
– We have heard all that before.
– As the Minister apparently recollects my comment about that aspect of the matter, I shall pass to another point. In proposing that a direction should be given to the court not to take child endowment into account in deciding the basic wage, the Opposition is not relying in any way upon the Commonwealth’s power in relation to conciliation and arbitration. If the Opposition rested its case on that power, I should say instantly that the provision would be utterly unconstitutional. We are not even looking at that. I want to make the point completely clear to the Government that in 1946 there was written into the Constitution an entirely new power over child endowment. That power stands unqualified. I refer to the power of the Parliament to provide child endowment. Backing that is the power that has always been in the Constitution, which is the power to do anything incidental to the execution of another power. I pose the position very simply and briefly by saying that surely the power of the Parliament to grant child endowment includes power to legislate to ensure that the endowment is not taken away, defeated, reduced or atrophied in any way by the action of some other body, no matter how august that body may be. Although I could develop a very excellent legal argument on what has already been said at the court, I do not propose to do so. However, I earnestly ask the Government to look at the constitutional basis upon which the Opposition rests this amendment, and to have regard to the dangers that lie ahead of it immediately in the industrial field. I shall make one further observation about the desirability of including a provision that the- court shall be directed not to take away or cut down the grant of child endowment. On behalf of the Opposition I express the legal opinion that the action we desire to have taken would be constitutional. Although I do not believe that it is free from all doubt, I commit myself very strongly to that view. Assuming the Opposition is wrong, and that it would be unconstitutional, I say without possibility of contradiction that the direction to the Commonwealth Court of Con. ciliation and Arbitration could be lifted out by the High Court, without imparing any other provision of the child endowment proposals.
– What about awards that have been made?
– Awards vary from day to day. There is no difficulty in that connexion, so far as I can see. I claim that even if the Opposition is wrong in its viewpoint, there is a clear constitutional basis for the amendment. Therefore, there would be no constitutional danger ahead of the Government.
– Order ! The honorable senator’s time has expired.
– I suppose that it is presumptuous for me to enter upon the field of legal argument, because I am not a lawyer by profession. However, I shall make two observations. The first is that the legal arguments that have been advanced by the Opposition have in fact been given mature consideration by the Government. I assure the Opposition that the legal arguments that it has advanced have been carefully scrutinized and examined by the Government. That is apparent from the remarks of the Attorney-General (Senator Spicer) by interjection. His comments show that he has a complete grasp and understanding of the points that have been raised. My second observation, based on the fact that I have had a reasonable amount of ordinary business experience, is that I have complete confidence in the advice that has been tendered to the Government by its legal advisers. It is unthinkable that the Government could accept the proposal that has been advanced by the Opposition, because it would undermine the very scheme that the Government desires to implement. In truth, there is a complete deadlock. The Government has brought down its proposal and believes that it was put to the Parliament in the best possible way in the interests of the people that it was intended should benefit. Having considered the alternatives suggested by the Opposition, the Government finds itself unable to accept them. That is why the Government is not prepared to enter upon any informal or .private discussions upon this matter.
Senator McKenna referred to the proceedings before the Commonwealth Arbitration Court in Melbourne for the fixation of a new basic wage. The report of those proceedings which I consulted appeared in the Melbourne Sun, and is more lengthy than the report which appeared in the Melbourne Herald. Let me say at once that the Liberal party has no association with the Employers Federation. Whatever the Employers
Federation may care to advance to the court is the business of that organization. Apparently, that body has ‘placed a proposal before the Commonwealth Arbitration Court for a basic wage to be determined on the needs of a man, wife and one child. I- suggest that that application is no more relevant to this debate than is the application made by the employees’ organization, which, according to my recollection, urged the court to fix the basic wage on the needs of a man, wife and three children. In other words, the employers’ and employees’ organizations, which are two competing interests, are each endeavouring to persuade the court to make a determination that will best suit their sectional interest.
However, I think that it is quite clear from the reported remarks of Judge Foster that he realizes the position, and that he will hold the scales of justice fairly between the two competing interests. The report also stated that the employers’ representatives urged that social services should be taken into account in determining the basic wage. However, the tone of the next paragraph of the report suggests that those representatives were complaining that the judge had indicated that he would not take social services into consideration. It is clear, therefore, that the newspaper reports of the proceedings amount to little more than communiques issued by opposing armies half way through a protracted battle, with each side putting its best foot forward.
The last point made by Senator McKenna was that in certain contingencies the fate of this legislation might cause industrial trouble. My views on that suggestion are quite clear. I believe that this legislation is so popular with the people of Australia, and is wanted so much by them, that the only possibility of the legislation provoking industrial trouble will arise, not from any action taken by the Commonwealth Arbitration Court, but from the failure of the Senate to pass the legislation.
– I desire to complete the thoughts that were passing through my mind when I spoke previously,, and to comment on the remarks made by the Minister for Social
Services (Senator Spooner). It is not novel for the Parliament to issue directions to the Commonwealth Arbitration Court. The jurisdiction of that court is most limited, and is confined to certain enumerated matters. The four main matters concern terms and conditions of employment in industry. All the other matters are reserved to the jurisdiction of the conciliation commissioners. The Parliament has already issued a most specific direction to the court to concern itself with industrial relationships under four heads, and there is a complete prohibition against the court interesting itself in the myriad matters left to the determination of the conciliation commissioners. That is not a new principle, and if time permitted I could demonstrate that the Commonwealth Conciliation and Arbitration Act contains other examples. The reference which I made to the report which appeared in the Melbourne press was not directed to the merits of the claim put forward by the Employers Federation at all. I was merely attempting to make one point, which is that child endowment will undoubtedly be taken into consideration as an issue by the court. I am not concerned with the reaction of the court when it was suggested that it should be taken into consideration.
– The report of the court’s reaction is rather interesting.
– As a matter of fact, the best report of the reactions of the judges appears in the Melbourne Age. Comments were made by the individual judges; but I remind honorable senators that judges are particularly careful not to give their opinions away in a case like this, which, although it has dragged on for twelve months, is still only part heard. All I do now is to point out that proceedings in the court yesterday underline my statement that child endowment is a live issue before the court, and one on which the court must pronounce.
The Minister’s reference to deadlocks was premature.
– I was not using the term “deadlock” in a technical sense; T stumbled for a phrase.
– Since the Minister used the phrase, although in advertently, I must say something about it. A deadlock between the House of Representatives and this chamber does not arise until all the machinery provided by the Constitution for resolving the differences between the two Houses has been utilized. The Standing Orders provide machinery’ under which differences between the two chambers may be reconciled and compromised, and the Opposition contends that the importance of child endowment at least deserves an effort to settle the differences between the two chambers on this matter. However, I did not suggest, and I do not suggest now, that discussions between representatives of the two chambers should be on an informal basis. I was referring to the provision for managers of both Houses to be appointed to discuss a serious difference between them. I referred to the fact that the discussions could take place on a more calm and objective level if they were removed from the heat of publicity. The proposition which I put forward did not envisage that a private conference should take place unless the managers of both Houses so agreed. As I understand the position, when the representatives of the two chambers meet in conference they can decide whether or not a record is to be made of their proceedings and whether or not they are to confer in private. Conferences in private naturally tend to objectivity and to frank expression of opinion, and are therefore calculated to resolve differences. At the same time, I do not forecast that such a conference would resolve the present difference between the two Houses. Members of the Opposition in this chamber feel strongly about the matters which prompted them to move the Senate to amend the bill introduced by the Government. I say no more on this aspect of the matter except to point out that the constitutional machinery to resolve deadlocks has not been invoked.
I conclude now with a reference to a statement by the Prime Minister (Mr. Menzies) in Sydney last night, in the course of which he referred to the fact that this chamber was holding up the Child Endowment Bill. ‘On the 27th April last, the Senate disposed of the measure and sent it to the House of Representatives, and it was returned about ten days ago. The message of the House of Representatives has been in the hands of the Government ever since, yet the bill was brought before this chamber only this evening for the consideration of these amendments. No proposal was made to the Opposition that it should interrupt other proceedings to enable this matter to be dealt with. I have a shorthand note of the remarks made by the Prime Minister last night, which were broadcast, and the transcript is confirmed by the newspaper reports of the right honorable gentleman’s utterances. In the course of his remarks, the Prime Minister said, when referring to the Child Endowment Bill -
It was introduced into the Senate on March 15th, and one of the provisions of that bill was that the first payment was to be made on June 1!). That bill was introduced three months ago, and it is still in the Senate.
It is “ in the Senate “ under the circumstances that I have outlined. The report of the Prime Minister’s speech which appeared in the Sydney Morning Herald reads as follows: -
The bill to provide endowment for the first child had been introduced in the Senate on March 15th. One of its provisions was that the first payment should be made on June 19, next Monday.
I emphasize that that statement, which was made by the Prime Minister, is entirely incorrect. The bill provides that entitlement to endowment in respect of the first child shall commence from the 19th June. It was never the intention of the Government to make a payment before the 18th July next. No suggestion has hitherto been made by any responsible Minister that payment should commence before that date. “We are all naturally concerned to know who misinformed the Prime Minister, because it is obvious that he must have been misinformed and that he had not read, or did not understand, the provisions of the bill. We feel that the Government should take steps to ascertain who was responsible for the right honorable gentleman making such a misleading pronouncement on an important matter on the eve of the general election in New South Wales. I suspect that the person who misled him hoped to stir up fierce resentment in the breasts of the electors of New South Wales against the Labour party at the thought that they might not receive the first child endow ment payment next Monday. As honorable members are aware, it was never intended that any payment should be made before the third week of July. It is obvious, therefore, that some one connected with the Government has been guilty of most reprehensible conduct. Some one deliberately engineered that pronouncement, and its falsity calls for some explanation. It should at least put the Prime Minister upon inquiry to ascertain who was responsible for him misleading thepeople of New South Wales.
– This bill was thoroughly debated in this chamber on the motion for the second reading and, at the committee stage, the Opposition inserted an amendment aimed at safeguarding the workers of Australia against a possible reduction of their wages as a result of the endowing of the first child. Since the bill left this chamber, we have learned from newspaper reports and from other sources, that the employers have asked the Commonwealth Arbitration Court, which is now hearing an application for an increase of the basic wage, to determine that wage upon the basis of the needs of a man and wife, plus an allowance of81 per cent, for children. There may be no affinity between the Liberal party and the Employers Federation, but there is rather a remarkable coincidence to which I shall draw attention. It is generally understood in union circles that, in fixing the last basic wage, the court included the sum of 25s. as an allowance for children. Eighty-one per cent. - the allowance for children now suggested by the Employers Federation - of 25s. is approximately £1, which, subtracted from the present allowance of 25s., leaves approximately 5s., which is the amount that the Government proposes to offer to the people of this country in the form of child endowment for the first child. If the Government persists in its refusal to insert in this bill a safeguard against a reduction of wages, and the court accepts the submission that has been made by the Employers Federation, families will benefit by an additional 5s. a week, but workers generally including widows, basic wage earners, and apprentices will have their wages reduced, although they have been paying regularly into the National Welfare Fund from which, this measure is to be financed. From what the Minister for Social Services (‘Senator Spooner) has said to-night, it is becoming plain that’ the Government intends to evade its obligations, and even to ignore its election pledge. It may be fulfilling that pledge m words, but it is not doing so in moral principle. The Minister said to-night that if the basic wage was determined on the basis of the needs of a man and wife only, the Government would give consideration to increasing child endowment for the first child from 5s. to 10s. We all know, of course, that even 10s. is hopelessly inadequate to maintain a child. The Parliament has never assumed that child endowment is sufficient to maintain a child. Child endowment must not be confused with wages. If the court accepts the suggested allowance of S3 per cent, for children, the result will not be what the Government promised during the election campaign. The Government will not alter the child endowment payment. Acceptance of the employers’ submission would amount to the abrogation of a principle for which workers have fought over many years. All organizations that are concerned with the stability of family life in this country have recommended that, on no account, should social services be permitted to reduce actual earnings. Regardless of the amount paid in social services, every worker should receive a wage comparable with his responsibilities. That principle will be abrogated if the Government’s proposal remains unaltered. A payment of 5s. a week is totally inadequate, and as I have said, even that 5s. will be lost if the court is influenced by- the employers’ representations. I trust that, even at this late stage, the Government will agree to the reinsertion of the Labour party’s amendment. If it is unconstitutional, it can be declared invalid without affecting the remainder of the measure. At least, the intention of the Government will be clear. The Government agrees that the endowment of the first child should not be used as an excuse to reduce wages. After all, the court operates within the ambit of legislation enacted by this Parliament. The court’s powers can be extended or restricted by the Parliament. The Opposition’s view is that money expended from the National Welfare Fund should not be used as a means of relieving employers of part of their . financial responsibility to their employees. That fund has been accumulated with revenue contributed by taxpayers. The proposition that has been put to the committee to-night by the Minister for Social Services should not be accepted. We should make it quite clear that social services are paid to raise living standards, regardless of the capacity of industry to pay wages. The Government agrees that endowment of the first child should not influence the court in fixing the basic wage, so why not make that intention clear in the bill? As 5s. a week is totally inadequate, the Government should make the payment for the first child the same as that for the second and subsequent children.
– The position that we have now reached should cause us to pause and think, and the responsibility involved should be accepted only after due consideration. T propose to reply to certain points that Senator McKenna raised. .The relationship of child endowment to the basic wage presents no new problem. Indeed, this measure has revealed no new facet of that problem. In my second-reading speech, I canvassed fully the possible effects on the basic wage of the endowment of the first child. The Government’3 decision was based on the best possible advice, and the Government is content to rely on that advice. I regret that I used the word “ deadlock “ in my earlier remarks. That word, of course, has a somewhat technical meaning. What I intended to convey was that the debate, both in this chamber and in the House of Representatives had shown that the views of the Government and of the Opposition were so irreconcilable that, in my frank opinion, no conference between committees would yield any solution of the problem. With reference to Senator McKenna’s disclaimer of any responsibility for delay I do not propose to argue the matter further. The situation has reached a much more serious stage than that. This was the first legislation that the present Government introduced into this chamber. It was presented in the confident belief that it would be passed. We did not expect the delay or the defeat that the measure has met at the hands of the Opposition, particularly in view of the fact that the Leader of the Opposition in the House of Representatives (Mr. Chifley), in his AddressinReply speech, said that the Government’s child endowment legislation would not be opposed. Therefore, I consider that we have gone beyond talking about delay. We are faced with the much graver situation that the whole scheme is now apparently defeated. Senator McKenna made some point of the fact that the Prime Minister (Mr. Menzies), speaking at the Town Hall, Sydney, last night, had confused the date of commencement of the bill with the date on which the first child endowment payment would be made. My reply to that is that, although I am the responsible Minister, I did not notice the mistake. Therefore, it is hardly likely that the mistake would have any great influence upon the public.
– It was a lie.
– That is a silly thing to say about the Prime Minister. In any case, the important matter now is not when the measure will begin to operate or when the first payment will be made; the real problem that sobers me is that the scheme has been defeated in this chamber. After looking at the matter calmly and dispassionately, the only construction I can place upon the present situation is that, in Australia, child endowment for the first child will not come into operation while the political parties remain at their present strength in each House of the Parliament.
– The problems that confronted honorable senators when this measure was previously before this chamber remain unsolved. The disagreement has not been lessened in any way. . There are only two issues. The first is that whereas the Government proposes a payment of 5s. a week, the Opposition believes that it should be 10s. a week. The second issue is the possible effect of this measure upon the basic wage. The Opposition made it clear when the bill was at the committee stage, that it would be content with an assurance that the endowment of the first child would not be allowed to interfere with the basic wage. Did I understand the Minister for Social Services (Senator Spooner) to say to-night that, according to the legal advice he had received, the endowment of the first child would not be taken into consideration in computing the basic wage?
– I made no such statement. It is a long story.
– I want to be clear. I have previously pointed out the dangers regarding endowment in relation to basic wage. In 1907 the basic wage was based on a unit of five under the Harvester award, but in 1940 it was reduced to three, including a man, his wife and child. On the 20th April, I said in the Senate -
As sure as the sun rises to-morrow, when child endowment for the first child becomes a reality, the basic wage will be determined in accordance with the requirements of a family unit of only two.
The application that is before the court in Melbourne at present justifies what I said. The Deputy Leader of the Opposition (Senator McKenna) has suggested that this matter should be discussed cooly. I am glad to see that no heat has been raised in the debate to-night. The Minister for Social Services has said that in the interests of industrial peace some protection should be given to the basic wage. I remind Ministers that they are continually appealing to the Opposition and to the industrial unions tq assist them in their struggles. I appreciate the enormity of the task that confronts them, particularly in putting value back into the fi) and increasing production. The Government will not get continuity of production if it interfers with the basic wage as a result of endowment of 5s. for the first child. I say in all sincerity. “Let us have a conference. Let us get around the table and talk.” Surely, between ourselves, the Government and the Opposition can arrive at a formula or some guarantee that the basic wage will not be interfered with. The Government will then have the Opposition committed to helping it in its struggle to increase production. It will have the Opposition compelled to assist it because of the cooperation that it has given to the Opposition. This should not be a one-sided affair. I am not seeking any political advantage whatever.
I think that the statement made by the Prime Minister (Mr. Menzies) in Sydney last night was unfortunate. I am not going to suggest that it was deliberate, but it is very strange that it went over the air in New South Wales practically on the last day that a statement could be made before the New South Wales election. I believe that the Prime Minister has been misled. I do not say that it was done deliberately but it will certainly be a political advantage to the Liberal party in the New South Wales election on Saturday. If the Government is sincere, let us have a conference. Let us get around the table and see if we cannot arive at a solution suitable to the Opposition and to the Government.
.- In the past, the questions of child endowment and the basic wage have been interlocked. In 1919 when an attempt was made to increase the basic wage to £3 17s. a week, child endowment was introduced into New South Wales and when an attempt was made to lower the basic wage to keep it in the vicinity of £3 8s. a week against the proposed determination of £3 17s., the workers of New South Wales set up an agitation with a result that the Holman Government was forced to capitulate on the basic wage. The Minister for Social Services (Senator Spooner) said that the employers had submitted their claims to the court with respect to child endowment and I have a copy of the statements made to the court. I shall quote from a statement which was submitted by the AttorneyGeneral for Western Australia on behalf of the Liberal government of that State. It reads, in part -
That insofar as the Court may decide to compute the basic wage upon any considerations relating to family units and their living costs it should take into account all advantages and concessions available to such family units, whether by way of social service benefits or otherwise. That insofar as the Court may decide to compute the basic wage on any consideration relating to family units and living costs, it would be inequitable to grant the claim by the applicants for equal pay for the sexes.
– What was the date of the Western Australian application?
– Numbers 11 to 24, 1949. That is the case that was before the court yesterday. The same kind of thing happened when the employers submitted their claims. I have here a copy of the claim on behalf of the general body of employers of Australia in the case now before the court. I quote from it as follows: -
If the basic wage is assessed to be fixed in relation to socially necessary requirements, account should be taken of the amount available for parents by way of child endowment.
It is quite clear and specific.
– That would apply to more than the first child.
– It would apply generally, but at present the basic wage is an established fact. Is an attempt being made by the governments and the employers of Australia to take away the endowment which the Australian Government proposes to make available to the people? The Australian Government introduced child endowment a little over twenty years ago in relation to its own employees. It did then exactly what I am afraid will happen now. It made its own employees pay the amount of child endowment. Each employee had deducted from his “wages the sum of £11 a year. That was used to pay for child endowment and it did so while that system operated.
Therefore I am quite specific ‘ in my attitude on this point. Child endowment comes out of the National Welfare Fund. All people in the community pay into that fund. The pay-roll tax is used for that purpose. By those means the taxpayers of Australia and the workers in general are paying into the National Welfare Fund taxes to meet cost of our social benefits scheme. If the court takes into consideration any amount that is paid as a result of this measure, and the workers lose that sum from the basic wage, they will also be losing money that they have already paid through social services contribution. J think it only right that we should take some steps to try to safeguard the interests of those people. I am not considering the wealthy people. There is no means test in relation to child endowment. All mothers with one child will get the benefit and I want to see them get it as early as possible. Senator Spooner said to-night that this proposal was submitted to the people, but I venture to say that hardly 100 electors in Australia knew then that an application was being made by the employers of Australia to to the court to reduce the basic wage by an amount equivalent to any increase that might be provided in child endowment. I refer honorable senators to the 1940 judgment, to the statement of Chief Judge Beeby and the statements by Chief Judge Piper and Judge 0’Mara. All honorable senators will recollect the time when those learned gentleman were trying to come to a decision. They wanted to give everybody in Australia a fair go but they found themselves in an awkward position. They wanted Parliament to do something but in the meantime the Australian Government introduced child endowment of 5s. a week for each child after the first child under sixteen. All that honorable senators on the Opposition side have in mind is to try to assist the workers and the people generally to secure the application of the endowment payment so that it will be a benefit to everybody in the community.
– I regret the attitude that the Government is adopting towards this important matter. The Government desires to remove clause 3 from this bill yet. all that that clause does is to make a declaration that endowment is to be regarded as a general social service and is not to affect wages or salaries. I appreciate that the Government is facing certain difficulties in its financial dispositions. I know that, during the last general election campaign, it promised to pay endowment for the first child, which will cost £15,000,000 a year, and that it promised to reduce taxation and increase pensions. It is experiencing some difficulty in its attempts to honour those promises. Therefore, I can understand that the Senate’s amendment to increase endowment for the first child from 5s. a week to 10s. has caused the Government some embarrassment. However, honorable senators opposite must understand that, because of the attitude of the employers representatives during the current hearing of the claim for a higher basic wage, the Opposition is determined to press the amendment that endowment of the first child shall not be taken into consideration by the court in assessing the basic wage. We have reason to fear that, in the absence of a specific direction in this legislation, the endowment of the first child may adversely affect the decision of the court so far as the workers are concerned. We know that, when a basic wage claim was before the court some years ago, the Government of the day introduced a child endowment scheme, the effect of which was to reduce the amount which the court ultimately awarded. Now, when another basic wage claim is before the court, the Government has come forward with its proposal to endow the first child. We are familiar with the arguments presented to the court by representatives of the employers on the subject of social services. The court has to decide how much of the pool of wealth created by the application of labour to materials should go to the employer, and how much to the employee. The workers, through their unions, are asking for a larger share, and are also asking for improved amenities. The Minister for Social Services (Senator Spooner) claimed that clause 3 might be deemed by the High Court to be unconstitutional. Well, let the matter go to the test. I have not had a legal training, and am reluctant to enter into legal argument, but I have had some experience in these matters. It was my duty for a number of years to represent the workers before various industrial tribunals in an attempt to obtain improved conditions, and I have picked up some knowledge of industrial law. I cannot believe that it would be unconstitutional for this Parliament to include in legislation a statement that the Commonwealth Arbitration Court should not take child endowment into consideration when assessing the basic wage. The court is no more entitled to consider child endowment than to be influenced by the fact that workers are entitled under an award to receive sick pay, holiday pay, and unemployment benefits. In my opinion, child endowment is just another social service, for which the employers and the employees contribute to the National Welfare Fund. Why should the basic wage be reduced because employees receive something from that fund ? It is certain that, when the fees of the company directors are being fixed, no consideration is paid to the fact that a director is entitled to draw child endowment, which is payable to the most affluent as well as to the most humble of our citizens. A declaration by this Parliament that child endowment is to be regarded as a social service should not make this legislation unconstitutional.
The Minister for Social Services referred to the fact that the Opposition Kas a majority in this chamber. Well, there is nothing novel in that situation. In the early days of federation, that happened more than once. In those days, honorable senators retained some independence of thought and action, believing that they were elected for the purpose of reviewing legislation. When I first entered the Senate about twelve years ago, the Lyons Government was in office, and the Labour party, which constituted the Opposition in this Senate, was in a minority. The Government introduced a hill dealing with industrial matters, and the Labour minority in this chamber moved certain amendments to it. We were able to make out such a good case for our proposals, that no fewer than four honorable senators who sat on the Government benches voted with the Opposition. ‘ The amendments were agreed to, and the bill was returned to the House of Representatives, which refused to accept them. When the bill came back to the Senate, those four Government senators still believed that the arguments adduced by the Opposition were sufficiently strong to justify their continued support of the amendments, with the result that the government of the day, while it did not accept all the amendments, finally agreed to accept some of them. The Labour party firmly believes that child endowment should be regarded as a social service, and that endowment for the first child should be 10s. a week. There is no reason why the Government should not accept our amendment, or at least agree to a conference between the two Houses of the Parliament. It seems, however, that the Government is more concerned about scoring political points than about reaching an agreement.
The Prime Minister (Mr. Menzies) in his speech in Sydney last night, accused the Opposition in the Senate of unduly delaying the passage of legislation. Evidently, he was supplied with wrong information. The Government is not using tactics that will secure the speedy passage of this measure. It claims that the people want this endowment. We are not attempting to deny it to them. We have only exercised our rights as an Opposition. The endowment can be paid on the appointed day if the Government will accept the decision of the Senate or agree to a conference of representatives of the two chambers at which the matter could he discussed and the differences between us ascertained and adjusted. It has been suggested that there is not very much between the Opposition and the Government upon this matter. Surely we can resolve our differences by getting together and exploring the possibilities of reaching an agreement. The Government would not lose face if it agreed to a conference. On the contrary, it would demonstrate that it is prepared to endeavour to ensure that legislation shall be placed upon the statute-book in a form acceptable to all parties* I believe that the Minister for Social Services and some other honorable senators opposite have appreciated the point of view advanced by members of the Opposition in relation to this important matter. It may be that there is an obstacle in the way of a conference, but I hope that, after further discussion, the members of the Government will accept the Opposition’s proposal and make it possible for this endowment to be paid soon.
Clause 3 of -the bill that was presented to the House of Representatives should not be dismissed peremptorily as invalid. Every measure that is passed by the Parliament, whether it be of major or minor importance, runs the risk of being declared unconstitutional. The Parliament does not possess sovereign powers. All measures that it passes are subject to interpretation by the High Court. If we were to adopt the attitude of honorable senators opposite and, as it were, proceed in fear and trembling that what we were about to do might not meet with the approval of the majority of the Justices of the High Court, the work of the Parliament would be stultified.
– Order ! The honorable senator’s time has expired.
– I rise again, not because I have any great contribution to make to the debate, but because four honorable senators opposite - Senator Cooke, Senator Katz, Senator Sheehan and the Leader of the Opposition (Senator Ashley) - have spoken, and 1 do not wish to appear discourteous by not replying to their remarks.
Senator Sheehan said, in effect, that the Senate was a House of review and that the Government should not be perturbed if it reviewed legislation. That was not a fair statement of the position. .The Government introduced a. measure that provided for the payment of child endowment to the first child in every family at a cost of £15,000,000 a year. By what stretch of the imagination can it be said that the Senate reviewed that legislation when the effect of the amendments it made would be to increase the annual expenditure under the bill from £15,000,000 to £30,000,000? If that was a review of the measure, I hope that no legislation for which I am responsible will be radically altered.
– The Government said it would double the rate of the endowment if the Commonwealth Arbitration Court took the payment into consideration in the computation of the basic wage.
– That is another matter. The view of the Government is that the measure, in its present form, is just, and will serve the best interests of the Australian community. The amendments that were made by the Opposition may, if reinstated, have the effect of making the measure unconstitutional, delaying the basic wage case, and causing litigation after the Commonwealth Arbitration Court has delivered its judgment in that case. That is an impossible situation in which to place a government.
This is a measure for which honorable senators on this side of the chamber, representing a great political movement, have worked for five years. I do not think it is unfair to say that it is being denied to the people of Australia by the representatives of another great political movement, who, in this matter, have not the support of their rank and file.
– That is wrong.
– It would take a lot to convince me that the average person who voted for the Labour party at the last general election approves of the actions of the Opposition in relation to this measure. This is a situation in which words will not help very much. I am willing that the committee should vote upon the question, if the Opposition is now prepared to do so.
– The Minister for Social Services (Senator Spooner) said that the inclusion in the measure of a clause stating that the Commonwealth Arbitration Court should not take this endowment payment into consideration in the computation of the basic wage might give rise to legal disputation about the validity of the measure and interfere with or delay the hearing of the basic wage case. That was only supposition, as was the statement that the clause might have the effect of upsetting the basic wage itself. There have been occasions when the jurisdiction of the Arbitration Court has been questioned, but those disputes have never delayed the proceedings of the court to any degree. The disputes were concerned mainly with how far the court could go under the Constitution. Our desire is that the Commonwealth Arbitration Court shall not take thi9 endowment payment - whether it be 5s. or 10s. a week - into consideration when assessing the basic wage. I do not propose to traverse the whole of that ground again. Apparently, my puny efforts have had no effect upon the Government or the Minister.
So far as the rank and file of the Labour movement is concerned, I have not yet met one member of the movement who did not want 10s. a week rather than 5s. a week. I have mixed with the men who are appearing in the basic wage case on behalf of the trade unions and workers who are subject to awards of the Commonwealth Arbitration Court, but I have not met one of them who does not support the move of the Labour party to divorce from the basic wage the endowment that will .be paid under this measure. That is all that we are trying to do. The Government and the Opposition agree that child endowment should be paid in respect of the first child in every family. We- differ only about the amount of the payment. The Minister, in his second-reading speech, advanced good reasons why it should be 10s. and not 5s. a week.
The Opposition is of the opinion that it is possible to incorporate in this measure a clause stating that the endowment shall not .be taken into consideration by any arbitration court, State or Commonwealth, in assessing the basic wage. That is all that it amounts to. That is all that we are trying to do. The Attorney-General (Senator Spicer) has stated that child endowment has never before been considered by the Commonwealth Court of Conciliation and Arbitration. I point out that between 1941 and the present time the court has not had an opportunity to do so. During that period, it has considered only an interim basic wage application. I have been led to believe that the present application to the court by several State governments, and on behalf of the employers, that child endowment should be taken into consideration, is attributable to what happened in 1941, when the court adjourned the application then before it because statements had been made by members of the government of the day to the effect that child endowment should be considered in assessing the basic wage, and that the Government would probably introduce child endowment payments. At the time Judge Beeby stated that the court had decided to adjourn until the Government had considered fully the subject of child endowment. When the court resumed the hearing, it stated that it considered that the basic wage then being paid was sufficient to provide only for the basic requirements of a man, his wife ami one child - not two children. The court also stated that a distinct hardship would be imposed on a man with a wife and three children to support. The Government then introduced legislation to provide for the endowment of the second and subsequent children. Because on that occasion the court gave way to the Government, the Opposition now asks that the present Government, having regard to what happened in 1941, should direct the court to disregard child endowment when assessing the basic wage. I contend that even if the payment of 10s. a week is made to endow the first child in every family under the age of sixteen years, in the absence of a specific direction to the court to ignore child endowment, thousands of people in this country working under federal awards, as well as workers in the States whose awards are adjusted in accordance with the “ C “ series index, will not obtain the full benefit of any increase of the basic wage as a result of the application now before the court, although they are fully entitled to an increase. The Minister has clearly stated that if the court should take child endowment into consideration and reduce the unit basis from three to two, the Government would immediately increase the amount payable from 5s. a week to 10s. a week. I point out that if os. a week is paid in respect of endowment of the first child under the age of sixteen years in every family, and the court retains the three-unit basis any increase of the basic wage would be reduced by that amount. Furthermore, the Government would not be obliged to pay 10s. a week because of the retention of the three-unit basis. I submit that although the amount involved would not be large, the increase to 10s. a week would be tremendously valuable to family men in this country. I stress the necessity to incorporate in this measure a provision directing the court not to take child endowment into account when assessing the basic wage. In my opinion; no weight attaches to the question of constitutionality. If the Government accepts that suggestion, thousands of workers will get the benefit of not only the 5s. a week endowment, but also any increase of the basic wage.
I plead with the Government to consider this matter once more - even more seriously than formerly - so that agreement can he reached. Evidently, my previous effort in this connexion was considered puny, because the Minister appears to be adamant that the Government is not prepared to accept the amendment that has been moved by the Opposition.
Senator ARNOLD (New South Wales) [9.56 J. - I support the request of the Opposition that the Government should further consider the amendment that has been moved. Although this matter was well canvassed when the bill was previously before this chamber, I do not consider that sufficient attention was paid to the point that has been stressed this evening by Senator McKenna. In view of the power that was granted to the Parliament in 1946, a direction should be given to the court to exclude child endowment payments from its considerations when assessing the basic wage. During recent years the Parliament has developed a social services scheme in this country. When Labour was in office it tried to pick up certain groups in our community that were suffering hardship, and endeavoured to alleviate those hardships. The whole matter hinges on the distribution of the national income. As honorable senators are aware, the court considers that, in addition to prescribed wages, certain groups of people should receive marginal rates for skill. Furthermore, within the last few years, the Parliament has made other provisions to benefit various groups of people in the community. I have in mind particularly the payment of sickness benefits. Because in the past workers have suffered hardship when they became ill, and lost time and money as a result, the Government determined that during the period of a worker’s illness, he should receive sickness payments. Time and again it has been argued before the court that awards should include provision for workers during periods of sickness. When making a redistribution of the national income, in the opinion of the Opposition, the court will take child endowment payments into account. I am convinced that when the judges are making up their minds on the basic wage application, they will tak”. into account any amounts other than wages that the workers receive.
– That is why the court adjourned the hearing.
– There is evidence to support the opinions of honorable senators on this side of the chamber. However, I want to go a little further and to impress on the Parliament that as we extend the scope of social services benefits for the community the danger is that every extension that we make will be neutralized by the arbitration tribunals making a corresponding reduction in the basic wage. What is the use of the National Parliament deciding how the national income is to be divided amongst the community if it is unable to say to the authorities that determine the basic wage that when they are fixing that wage they shall not take into account social services concessions made to those who are suffering hardships? This is a most important matter. From the evidence that has been placed before us, we believe that the Parliament has the power to make payments to deserving members of the community, and we believe that those families which have only one child should receive endowment. The benefit of that endowment would be entirely set aside if the court reduced the basic wage accordingly. In the last ten years there has been a tremendous advance in the scope of social services, and we believe that by making social services payments we have given the recipients something to which they are entitled. The whole matter of the power of the Parliament to provide social services was referred to the people some years ago, and the people, by their votes at the referendum, authorized the Parliament to provide social services. I cannot understand, therefore, the reason for the Government objecting to the Parliament indicating to the court its view that a certain payment should not be taken into account in determining the basic wage. The Government proposes to make a payment of 5s. a week in respect of lie-first child of every family, and the Opposition, whilst agreeing with the principle, considers that the payment should be increased to 10s. per week. All we desire to do, apart from increasing the payment, is to direct the court not to take any such payment into account in determining the basic wage. Notwithstanding the view expressedby the Government that the Parliament has not the power to issue such a direction, I believe that it has that power. I cannot understand why we cannot give a clear direction to the proper authorities in this matter in order to assist them to understand the intention of the legislature. I therefore support the appeal made by the Opposition to the Government to restore the bill to the form in which it passed the Senate.
Question (by Senator Spooner) put -
That the question be now put.
The committee divided. (The Chairman -Senator T. M. Nicholls.)
AYES: 20
NOES: 28
Majority . . . . 8
AYES
NOES
Question so resolved in the negative.
– It is very evident. that a considerable doubt has developed in the mind of the Government since this measure was originally introduced into the Senate. During the course of the second-reading speech, delivered by the Minister for Social Services (Senator Spooner) he devoted a great deal of his time to an endeavour topersuade the
Senate that by reason of the passage of this bill no problem would confront the Commonwealth Conciliation and Arbitration Court when it was determining the basic wage. He made that assertion several times, and also quoted the remarks of certain eminent Australians of an earlier generation in support of that contention. However, the fact is, as pointed out by Senator McKenna this evening, that the employers have already made a fresh claim to the court in the basic wage inquiry. The new application was made by Mr. Aird on behalf of the employers, and he submitted that the court should alter the basis on which it determines the basic wage because the Parliament is in the process of enacting legislation to cushion the impact on the family of the increased cost of living. It is clear, therefore, that the employers’ organization has already taken advantage of the discussions that have occurred in the Parliament on this matter.
– I suggest that it would be fairer of the honorable senator to read the next two paragraphs in the newspaper report on which he is basing his remarks. I have not yet had an opportunity to read the whole report.
– The statement just made by the Minister in charge of the bill amounts to an admission that he is not aware of what is already happening in the Commonwealth Arbitration Court. I believe that the Government has made up its mind on its attitude in this matter for a very definite reason. Last night, the Prime Minister (Mr. Menzies) exploited the introduction of thisbill in an effort to obtain the last ounce of political credit from it. The report of his remarks which appeared in the press is as follows : -
He said the bill to provide endowment for the first child had been introduced to the Senate on 15th March. One of its provisions was that the first payment should be made on 19th June, next Monday. But that bill, too, was in the Senate.
He went on to say -
I want every one to know that if the bill does not operate it is due to the Labour Opposition in the Senate and to nobody else.
Whether the misstatement was made deliberately or not, we shall never know, but the fact remains that a gross misstatement was made. The Minister for Social Services says that he, as the responsible Minister, will take the blame for the misstatement. I cannot see what blame can possibly be attributable to the Minister. I am sure that he did not prepare the speech. The Prime Minister said that the first payment would have been made on Monday next - the Monday after the State elections. I repeat that the Prime Minister’s statement was grossly inaccurate. We are entitled to expect members of this Parliament to observe a certain standard of ethics. Politics is a rough-and-tumble game, and in it we take and give to the best of our ability.
– What mistake’ did the Prime Minister make ?
– He said that the first payment would have been made on the 19th June, whereas in fact payments were not scheduled to begin until the 18th July. It may be a newspaper error.
– It was not. We heard it over the air. 1
– It is of some satisfaction at least to get an admission from the Government that a mistake was made.
– Does the honorable senator know when the New South Wales elections are to be held ?
– I do, and so do many other honorable senators opposite who are resorting to dishonorable political tricks to sway votes. I was bringing to the attention of honorable senators the position that has arisen in relation to the basic wage hearing as tho result of discussions in this Parliament. In to-day’s Melbourne Age there is a double column article on the subject. We have asked that a direction be given to the Arbitration Court that the introduction of endowment for the first child shall not be taken into account in fixing the basic wage. That was our case at the election in 1946, and again at the last general election. We were certain, from information that we had in our possession, that the basic wage would be affected, and that while the Government would be making a child endowment payment pf 5s., the wages of thousands of workers would be seriously depleted. That waa denied by our political opponents from every election platform, and in the Parliament itself. However, by Mr. Aird’s submission, the Labour party’s argument over the years that there is a grave possibility of the basic wage being affected by the endowing of the first child, is substantiated. As I have said, there is a two-column article in the Melbourne Age on this subject.
– It is headed “A new formula “.
– That is so; but I challenge any honorable senator to find a similar article in any Sydney newspaper. A moment ago the Leader of the Opposition (Senator Ashley) spoke in defence of the press. That was one of the few opportunities he has had to do so. He cannot fail to adopt a rather different attitude on the matter to which I am now referring. With an eye to the forthcoming State elections, the Sydney press has refrained from publishing one word of the story that appeared in the Melbourne Age. This is an important matter, affecting every wage-earner in the Commonwealth. The Prime Minister made child endowment a political issue at the New South Wales elections by his speech last night, and, of course, if this Melbourne report had been published in the Sydney press, it would have counteracted the Prime Minister’s charges. It is a complete denial of the unfortunate stand that the right honorable gentleman has taken; but can we find one word of it in the Sydney Morning Herald or the Sydney Daily Telegraph? I have searched the Sydney press and have failed to find any reference to the matter. Clearly the story has been suppressed because the newspapers are supporting the Prime Minister in the State election campaign. They know that every vote will count on Saturday next. Whether their methods are honorable or dishonorable does not matter to them. This is an example of the depth to which the newspapers will sink to sway a few votes at election time. Since this Government has been in power, it has played the political game to the “ nth “ degree. It played the political game with petrol rationing. It abolished petrol rationing immediately before certain by-elections in New South Wales. That action was taken not on any new information that had come to hand, but on information that had been in the Government’s possession for six weeks. On that information, the Government could have abolished petrol rationing nearly two months earlier, but it chose to make the announcement four days before the New South Wales by-elections. The announcement was made at that time solely for it’s political value. We have also fresh in mind the circumstances in which the legislation with which we dealt earlier to-day was introduced into the Parliament. Is there no limit to the depth to which this Government will sink for political advantage? The situa-s tion to-day should worry all honorable 1 senators, but apparently it does not. The political game has been played lower in this Senate in the last six months than I have ever seen it played before. The Opposition could advance a prima facie case to show that the court does take into consideration legislation that is passed by this Parliament. The least that the Government could do was to accept the Opposition’s proposal to give a direction to the Commonwealth Arbitration Court that wages should be protected when endowment for the first child was introduced. That is not an unreasonable request. All the facts and figures given by the Minister in his second-reading speech to show that the Arbitration Court would not take into account child endowment for the first child in assessing the basic wage has been swept aside by Mr. Aird’s application to the court. A new situation now confronts us. It has arisen from the deliberations of this chamber, and I submit that the Government should make certain that the standard of the basic wage shall be maintained.
– Order ! The honorable senator’s time has expired.
– I believe that any organization that claims to be a great political party should have the courage to accept political responsibility for its actions. My accusation against the Opposition is -that on the eve of the New South Wales elections, it has not the courage to vote on this legislation. The bill has now been before the Senate for two and a half hours, and Opposition speakers have repeated ad nauseam the same old story. What is the Opposition’s criticism? It is that the Prime Minister (Mr. Menzies), speaking at the Town Hall, Sydney, last night, said that thi3 scheme was originally intended to come into operation “ on “ the 19th June, instead of “from” the 19th June. A political party that is prepared to hang its hat on such criticism has reached the lowest possible level. The Opposition’s second argument is that a new system has been evolved in Melbourne overnight for computing the basic wage. No more fantastic argument was ever placed before an intelligent body. What actually happened at the basic wage hearing was that one junior counsel advocated a particular method of assessing the basic wage. The newspaper report shows clearly that whether that submission was right or wrong, it was summarily rejected by the judge. I can only say that if we on this side of the chamber ever had the audacity to “ stall “ for two and a half hours to avoid the necessity to express our political convictions at a vote, we should at least, have advanced a better argument than the committee has heard from honorable senators opposite to-night. The newspaper report to which reference has been made stated -
Mr. Aird submitted that the change in the family unit basis was justified by the fact that Parliament had “ cushioned “ the burden of the family responsibility of wage-earners,.
Mr. Justice Foster asked ;
Why should the court take notice of something that is outside its control?
What colossal impudence honorable senators opposite have when they claim that this represents a new system of computing the basic wage! Mr. Justice Foster added -
Child endowment is something that can be doubled or halved - the plaything of politics.
I am prepared to listen to any reasonable criticism or any intelligent argument, but even a worm will turn. For two and a half hours to-night I listened to all the tripe that came from the other side of the chamber, only to find that the Opposition was not prepared to vote on the question. To remain silent in the face of such tactics was asking too much of. any individual.
– (SenatorNicholls). Order! In conformity with the sessional order relating to the adjournment of. the Senate, I formally put the question -
That the Chairman do now leave the chair and report to the Senate.
The committee divided. (The Chairman - Senator T. M. Nicholls.)
AYES: 28
NOES: 21
Majority . . 7
AYES
NOES
Question so resolved in the affirmative. The Chairman having reported accordingly,
page 4377
– Order ! In con formity with the sessional order relating to the adjournment of the Senate, I formally put the question -
That the Senate do now adjourn.
– I draw the attention of the Government to the serious position that has arisen regarding the price of meat in Adelaide. The. Minister for Trade and Customs (Senator O’Sullivan) was correct when he said recently in a reply to a question that I put to him that the Commonwealth Government had very little power in this matter. He said that the Government would be prepared to co-operate with the State Government if it were asked to do so. It is easy to find the real reason why the Commonwealth Government is devoid of power to take action to protect the consumers. With the press of the country, the Liberal party was responsible’ for the defeat of the prices referendum. In Adelaide this week chops were 3s. per lb. Sheep were sold in the Adelaide market for ?9 9s. 6d. a head and the general community and the small butchers are suffering as a result of these high levels. I know that the Federal Government has little power in this matter, but I ask it to take whatever steps it can to assist the State Government to overcome this problem. Many pastoraliats, as wellas householders and businessmen, are wondering just where it will end. In all sincerity I refer the question to the Government.
Question resolved in the affirmative.
page 4377
The following papers were presented : -
Commonwealth Public Service Act - Appointments - Department of Works and Housing -E. H. Cartwright, R. L. Durbridge, A. D. Jones, D. 6. Ratten, A. D. Richards, C. S. Schumacher, B. B. Taylor, J. A. Webster.
Lands Acquisition Act - Land acquired for Defence purposes -Puckapunyal, Victoria.
Senate adjourned at 10.38 p.m.
Cite as: Australia, Senate, Debates, 15 June 1950, viewed 22 October 2017, <http://historichansard.net/senate/1950/19500615_senate_19_208/>.